Farmer v. Warden, Marion Correctional Institution

Filing 13

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON MOTION TO AMEND THE JUDGMENT - Farmer's Objections are not well taken and should be overruled. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certifica te of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 2/12/2016. Signed by Magistrate Judge Michael R. Merz on 1/26/2016. (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
DAVID A. FARMER,
Petitioner,

:

- vs -

Case No. 3:15-cv-389
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

JASON BUNTING, Warden,
Marion Correctional Institution,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON
MOTION TO AMEND THE JUDGMENT

This habeas corpus case is before the Court on Petitioner David Farmer’s Objections
(ECF No. 11) to the Magistrate Judge’s Report and Recommendations (ECF No. 10)
recommending Petitioner’s Motion to Alter or Amend the Judgment (ECF No. 9) should be
denied. Judge Rose has recommitted the matter for reconsideration in light of the Objections
(ECF No. 12).
Farmer offers no objections to the substance of the Report and Recommendations, but
rather to the Magistrate Judge’s having any involvement with the Rule 59 Motion which he
claims
was specifically addressed to the District Court Judge of the Court,
as a pleading seeking reconsideration of an order and judgment
entered by the district court judge himself. There is no notice of
resignment [sic] of the case to the Magistrate Judge, nor any
agreement to any such conditions. Petitioner thus takes issue with
the Magistrate Judge's interception of his Motion directed to the
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District Court Judge pursuant to Rule 59(e), Fed. R. Civ. Proc. He
believes the Magistrate lacked authority or jurisdiction for a report
and recommendation. . .

(ECF No. 11, PageID 42.)
This Court’s General Order of Assignment and Reference (Dayton General Order No. 1301) provides in pertinent part
Referral of Cases by Category
Pursuant to 28 U.S.C. §636(b), the following categories of cases
filed at the Dayton location of court are referred by this Order to
the United States Magistrate Judge to whom the case has been
assigned who is authorized to perform in each such case any and
all functions authorized for full-time United States Magistrate
Judges by statute. In each such case the Magistrate Judge shall
proceed in accordance with Fed. R. Civ. P. 72. * * *
6. Post-Conviction Relief: All cases collaterally attacking a
criminal judgment, including without limitation those filed under
28 U.S.C. §§2241, 2254, or 2255. All such cases shall be assigned
and are referred by this Order to Magistrate Judge Merz.

What is referred by the General Order is whole cases, not parts of cases. This while a
habeas petitioner is entitled to a final judgment on a post-judgment motion by a District Judge,
he is not entitled to preclude a Magistrate Judge from making a recommendation on postjudgment motions. That is what is contemplated by the General Order and Petitioner cites no
law prohibiting District Judges from referring motions of this type to the Magistrate Judge. Of
course, because a Rule 59 motion is made post-judgment, a Magistrate Judge cannot decide such
a motion, but must make a recommendation to the assigned District Judge. McLeod, Alexander,
Powel & Appfel, P.C. v. Quarles, 925 F.2d 853 (5th Cir. 1991). Thus Farmer’s objection that the
Maigstrate Judge lacked authority to consider the Motion is not well taken.
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Farmer also objects that “the actions of the Magistrate Judge served to address
affirmative defenses sua sponte or was devised to alter the course of procedural default
applications to the benefit of the respondent.” (ECF No. 11, PageID 42.)
All of the Court’s analysis in this case, including the recommendation to dismiss the
Petition as procedurally defaulted, have been done sua sponte. The Magistrate Judge’s initial
recommendation was done sua sponte as is prescribed by Rule 4 of the Rules Governing § 2254
Cases (See Report and Recommendations, ECF No. 3, PageID 13.) But the Sixth Circuit has
held it is not inappropriate for the Court to raise a procedural default defense sua sponte. White
v. Mitchell, 431 F.3d 517, 524 (6th Cir. 2005); Sowell v. Bradshaw, 372 F.3d 821, 830 (6th Cir.
2004); Lorraine v. Coyle, 291 F.3d 416 (6th Cir. 2002)(§ 2254 capital case); White v. Mitchell,
431 F.3d 517, 514 (6th Cir. 2005)(capital case); Elzy v. United States, 205 F.3d 882 (6th Cir.
2000)(§ 2255 case). Rule 4, which requires a court consider a petition to decide whether to order
an answer would have little meaning if the Court could not consider sua sponte whether there
had been a procedural default.
Accordingly, Farmer’s Objections are not well taken and should be overruled. Because
reasonable jurists would not disagree with this conclusion, Petitioner should be denied a
certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would
be objectively frivolous and therefore should not be permitted to proceed in forma pauperis.

January 26, 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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