Jones v. Warden, Ross Correctional Institution

Filing 33

REPORT AND RECOMMENDATIONS - Petitioner's motion for delayed appeal, construed as a motion to reopen, is untimely and should be denied. Objections to R&R due by 8/25/2016. Signed by Magistrate Judge Michael R. Merz on 8/5/2016. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
TIMOTHY JONES,
Petitioner,

:

- vs -

Case No. 3:15-cv-164
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

WARDEN, Ross
Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner’s filing labeled “Notice of
Appeal” (ECF No. 31) and the Warden’s Response (ECF No. 32).
Judge Rice dismissed the Petition for Habeas Corpus with prejudice, denied a certificate
of appealability, and found any appeal would be objectively frivolous on March 31, 2016 (ECF
No. 25). The Clerk entered judgment the same day (ECF No. 26). On June 13, 2016, Petitioner
attempted to file a supplement to his Objections to add case law in support (ECF No. 27). That
Motion was denied as moot because Judge Rice had already entered judgment. The Court later
found moot Petitioner’s application for leave to proceed on appeal in forma pauperis on the same
basis.
Then on June 25, 2016, Mr. Jones filed the instant Notice of Appeal (ECF No. 31). This
Notice has been transmitted to the Sixth Circuit which has docketed it under Case No. 16-3798.
As part of the Notice of Appeal, Jones requests a delayed appeal, asserting he was not
notified of the dismissal of his Petition until June 17, 2016 (ECF No. 31). The docket reflects,
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however, that both Judge Rice’s decision and the Clerk’s Judgment were sent to Jones at Ross
Correctional Institution by regular mail on the date they were filed and have not been returned by
the Postal Service. Jones attaches an undated note purportedly from a Mr. Ward (the signature is
illegible) stating “We have no legal mail logs with your name on them for March or April.” (ECF
No. 31, PageID 2147).
A district court may extend the time for taking an appeal only if the party seeking the
extension moves for it within thirty days of the date when the time to appeal expired and shows
good cause. In this civil case, the time to appeal expired thirty days after judgment, April 30,
2016. Therefore the motion to extend had to be filed by May 30, 2016. The Notice of Appeals
with the included request was not filed until July 15, 2016.
In addition to extending time to appeal, a district court may reopen the time to appeal.
Fed. R. App. P. 4(a)(6). Jones claims he was not aware of the dismissal until June 17, 2016,
presumably when he received a copy of the Notation Order denying his motion to amend or
correct, which was mailed on June 13, 2016. Jones’ time to move to reopen the appeal expired
fourteen days after he received notice of judgment, which, in the best case from his perspective,
is July 1, 2016. He did not deposit his Notice of Appeal with the included request for delayed
appeal in the mail until July 6, 2016 (ECF No. 31, PageID 2146). Time for filing a motion to
reopen runs from the time notice is received of the dismissal, not from service of the paper that
gives notice, so Jones is not entitled to the benefit of Fed. R. App. P. 16(c). His motion for
delayed appeal, construed as a motion to reopen, is untimely and should be denied.

August 5, 2016.
s/ Michael R. Merz
United States Magistrate Judge
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NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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