Lee v. Warden, Madison Correctional Institution

Filing 13

ORDER TO THE CLERK; REPORT AND RECOMMENDATIONS - Per direction of the Clerk of the Sixth Circuit, the Motion is to be shown on this Court's docket as a Notice of Appeal with a "filed" date of September 23, 2016 (ECF No. 11-1, PageID 98). The Clerk shall amend the docket accordingly. It is respectfully recommended that Mr. Lee's renewed motion for certificate of appealability be DENIED. Objections to R&R due by 11/4/2016. Signed by Magistrate Judge Michael R. Merz on 10/18/2016. (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
MICHAEL A. LEE,
Petitioner,

:

- vs -

Case No. 3:15-cv-244
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

RHONDA RICHARDS, Warden,
Madison Correctional Institution,
:
Respondent.

ORDER TO THE CLERK; REPORT AND RECOMMENDATIONS

This habeas corpus case under 28 U.S.C. § 2254 is before the Court on Petitioner’s
Motion for Certificate of Appealability which the Clerk has docketed as a Notice of Appeal
(ECF No. 11).
Per direction of the Clerk of the Sixth Circuit, the Motion is to be shown on this Court’s
docket as a Notice of Appeal with a “filed” date of September 23, 2016 (ECF No. 11-1, PageID
98). The Clerk shall amend the docket accordingly.
The docket reflects that judgment was entered in this case on September 2, 2015 (ECF
No. 9). The docket further reflects that the Clerk sent a copy of the judgment to Petitioner by
regular mail on the same day it was filed. Id. Mr. Lee claims he never received the judgment
until August 23, 2016, more than eleven months after the docket reflects that it was mailed to
him. The docket does not show that the mail was ever returned. The docket also shows that the
Decision and Entry adopting the Magistrate Judge’s Report and Recommendations was filed
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separate and apart from the judgment, mailed to Petitioner on August 27, 2015, and never
returned undelivered by the Postal Service.
Mr. Lee avers that he has examined the mail room logs at Madison Correctional and they
do not show any documents received from this Court from August 26, 2015, until August 23,
2016. He asserts he never received this Court’s decision and judgment until it was sent to him
by Bryant L. Crutcher, a case manager for the Sixth Circuit Court of Appeals, in response to his
Petition for Mandamus to compel this Court to reach a decision. This Court’s docket reflects
notice from the Court of Appeals that Mr. Lee had filed the mandamus petition on August 18,
2016 (ECF No. 10).

Whether the Court of Appeals will exercise jurisdiction under these

circumstances is a question for that Court to decide.
On the question of whether or not Mr. Lee should be granted a certificate of
appealability, the Magistrate Judge already recommended that a certificate be denied and Judge
Rice adopted that recommendation.

Nothing in Lee’s new Motion for Certificate of

Appealability shows that any reasonable jurist would disagree with this Court’s conclusions on
the corpus delicti rule.
It is therefore respectfully recommended that Mr. Lee’s renewed motion for certificate of
appealability be DENIED. Of course, Mr. Lee can raise this question anew with the Sixth
Circuit.
October 18, 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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