Russell v. Warden, North Central Corectional Complex

Filing 25

REPORT AND RECOMMENDATIONS ON MOTION TO EXPAND THE RECORD - The Objections, construed as a motion to amend the judgment under Fed. R. Civ. P. 59(e), should be OVERRULED and the Motion DENIED. (Objections to R&R due by 12/21/2015). Signed by Magistrate Judge Michael R. Merz on 12/4/2015. (srb)(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
CHRISTOPHER M. RUSSELL,
Petitioner,

:

- vs -

Case No. 3:15-cv-165
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

NEIL TURNER, WARDEN, North Central
Correctional Complex,
:
Respondent.

REPORT AND RECOMMENDATIONS ON MOTION TO EXPAND
THE RECORD

This habeas corpus case is before the Court on Petitioner=s Motion to Expand the Record
(ECF No. 24) in support of a request to reopen the judgment and consider Petitioner’s Objections
(ECF No. 23).
A Second Supplemental Report and Recommendations recommending that this case be
dismissed for failure to file within the statute of limitations was filed October 16, 2015, and sent
by regular mail to the parties on that date with a notation that objections, if any, had to be filed
by November 2, 2015 (ECF No. 21). When no objections had been received by November 10,
2015, District Judge Rice adopted the Second Supplemental Report and dismissed the case
(Order, ECF No. 22). Petitioner’s Objections (ECF No. 23) were received two days later and the
Magistrate Judge struck them as untimely filed.
Russell now seeks to expand the record to show that the Objections were timely. The
Court will consider the attachments to the Motion as part of the record. The Objections are dated
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October 29, 2015, and the cash withdrawal slip was signed the same day. However, the cash
withdrawal was not processed until November 3, 2015, one day after the Objections were due.
The Court has difficulty understanding why, if the cash withdrawal was processed on November
3rd, the Objections did not reach the Clerk until November 12th. But the Petitioner is entitled to
the October 29, 2015, mailing date under Houston v. Lack, 487 U.S. 266 (1988), so the Court
will consider the Objections. The Notation Order striking the Objections is VACATED.
Because a final judgment has been entered in the case, the Court will consider the
Objections as a motion to amend the judgment under Fed. R. Civ. P. 59(e). This will preserve
Russell’s right to appeal and the time within which to do so, which will only begin to run when
Judge Rice rules on this Report and Recommendations.
A motion under Fed. R. Civ. P. 59(e) is not an opportunity to reargue a case. Sault Ste.
Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)(citation omitted).
Thus, parties should not use them to raise arguments which could and should have been made
before judgment issued. Id. Motions under Rule 59(e) must establish either a manifest error of
law or must present newly discovered evidence. Id.
In ¶ 1 of the Objections (ECF No. 24, PageID 586), Russell notes that, although filed in
the correct case, the Second Supplemental Report carries an incorrect caption, for which the
Magistrate Judge apologizes.

The correct caption is as above.

The body of the Second

Supplemental Report was directed to this case.
Paragraph 2 asserts the Magistrate Judge has not made the “necessary adjustment from
the prosecutorial mindset.” The Magistrate Judge has never been a prosecutor.
In ¶ 3 the Objections criticize the Second Supplemental Report for giving “a summary of
the State’s position phrase as fact.” Id. The statements of fact are from the opinion of the Second

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District Court of Appeals on direct appeal in this case. State v. Russell, 2012-Ohio-4316, ¶ 3,
2012 Ohio App. LEXIS 3786 (2nd Dist. Sept. 21, 2012). At this point these facts are not
“alleged” as Russell contends, but facts found by the relevant state court of appeals which are
presumed by a habeas court to be correct unless rebutted by a petitioner by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
Russell objects that the State has not refuted his position or rebutted his allegations
(Objections, ECF No. 23, ¶¶ 4, 12). That is because the State filed, and the Magistrate Judge
found warranted, a motion to dismiss the Petition as barred by the statute of limitations.
Russell has shown no manifest error of law in the Second Supplemental Report and
Recommendations. Instead, he has structured his Objections as an attack on the impartiality of
the Magistrate Judge and concludes by requesting that the Court “remove this issue from the
hands of the Magistrate who has now had three chances to properly consider the issues and has
entrenched into the idea of denial due to his bias against individuals accused of these crimes.”
(Objections, ECF No. 23, PageID 590.) Russell stands convicted by a jury of ten counts of
sexual misconduct with his daughter, including five counts of raping her when she was under
thirteen. Nevertheless, he is entitled to the same due process in habeas corpus as any other
convicted person. Russell has failed to show his case is in its present posture because of any
disqualifying bias of the Magistrate Judge.
The Objections, construed as a motion to amend the judgment under Fed. R. Civ. P.
59(e), should be OVERRULED and the Motion DENIED.
December 4, 2015.
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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