Farmer v. Warden, Marion Correctional Institution

Filing 20

REPORT AND RECOMMENDATIONS ON MOTION FOR REMOVAL OF MAGISTRATE JUDGE - Because Petitioner has shown no violation of law in the Magistrate Judge's exercise of jurisdiction over the post-judgment matters in this case, his Motion for Removal shoul d be DENIED. 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 therefor e should not be permitted to proceed in forma pauperis. Objections to R&R due by 3/10/2016. Signed by Magistrate Judge Michael R. Merz on 2/22/2016. (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.

REPORT AND RECOMMENDATIONS ON MOTION FOR
REMOVAL OF MAGISTRATE JUDGE

This habeas corpus case is before the Court on Petitioner David Farmer’s Motion for
Removal of Magistrate Judge from Case (ECF No. 19). Farmer complains that the Magistrate
Judge has taken action in the case after the District Judge entered judgment on December 22,
2015, on the theory that entry of judgment deprive the Magistrate Judge of authority to act.
The docket shows that Judge Rose entered judgment on December 22, 2015, dismissing
the Petition with prejudice, denying a certificate of appealability, and certifying to the Sixth
Circuit that an appeal would not be in good faith (ECF No. 8). Shortly thereafter Petitioner filed
a Motion to Alter or Amend the Judgment (ECF No. 9). Pursuant to Dayton General Order No.
13-01, all “cases” seeking post-conviction relief filed at the Dayton location of court are referred
to the undersigned Magistrate Judge. The referral of a case does not end with judgment, but
continues thereafter as long as motions are filed in the case. Prior to judgment, Magistrate

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Judges are authorized by 28 U.S.C. § 636(b)(1) to decide some matters and make
recommendations on others. Post-judgment, any referral to a Magistrate Judge requires a
recommendation. Magistrate judges may be delegated post-trial matters, particularly Rule 60(b)
motions, under § 636(b)(3). McLeod, Alexander, Powel & Appfel, P.C. v. Quarles, 925 F.2d 853
(5th Cir. 1991).
Farmer asserts that the judgment “rendered the controversy moot.” (Motion, ECF No. 19,
PageID 60). But he has not treated it as moot, filing a motion to amend the judgment which
plainly must be ruled upon by this Court.
Farmer invokes res judicata, collateral estoppel, separation of powers, and the Ex Post
Facto Clause of the Constitution. None of those doctrines forbid referral of post-judgment
motions to a Magistrate Judge. The assigned District Judge retains complete discretion to
remove a Magistrate Judge from a case or part of a case, for cause or for no cause at all. But it is
the District Judges and not the parties who decide which matters shall be referred to a Magistrate
Judge.
Because Petitioner has shown no violation of law in the Magistrate Judge’s exercise of
jurisdiction over the post-judgment matters in this case, his Motion for Removal should be
DENIED. 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

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appeal would be objectively frivolous and therefore should not be permitted to proceed in forma
pauperis.

February 22, 2016.
s/ Michael R. Merz
United States Magistrate Judge

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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