Taylor v. Warden Marion Correctional Institution
REPORT AND RECOMMENDATIONS - Petitioners Motion to Proceed in forma pauperis (ECF No. 16) should be denied. Mr. Taylor's motion for an extension of sixty days to file a motion for certificate of appealability (ECF No. 18) should be denied as moot. Objections to R&R due by 4/7/2017. Signed by Magistrate Judge Michael R. Merz on 3/24/2017. (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
- vs -
Case No. 3:16-cv-398
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
JIM BUNTING, WARDEN,
Marion Correctional Institution,
REPORT AND RECOMMENDATIONS
On March 13, 2017, the Clerk of the United States Court of Appeals for the Sixth Circuit
forwarded to this Court a Notice of Appeal in this case received by the Sixth Circuit on March 1,
20171, and directed that it be filed as a notice of appeal (See letter of Patricia Elder at ECF No.
17-2, PageID 117). Mr. Taylor’s appeal is taken from Judge Rose’s February 7, 2017, Entry and
Order denying Taylor’s Motion for Relief from Judgment (ECF No. 14).
Also on March 1, 2017, the Clerk filed separately Taylor’s Motion to Proceed in forma
pauperis (ECF No. 16, captioned as being filed in the Court of Appeals). With respect to the
underlying habeas corpus action, Judge Rose has already certified that an appeal would be
objectively frivolous and should not be permitted to proceed in forma pauperis (ECF No. 6).
If material, Mr. Taylor may be entitled to a filing date of February 23, 2017, the date he placed the Notice of
Appeal in the prison mailbox. See Houston v. Lack, 487 U.S. 266 (1988); Cook v. Stegall, 295 F.3d 517,
521 (6th Cir. 2002).
Mr. Taylor’s Motion for Relief from Judgment sought to reopen the judgment so that the
Court could consider lengthy pro se objections on the merits (ECF No. 11) which had not been
timely filed before judgment because Mr. Taylor’s retained attorney decided objections were not
warranted. In the judgment appealed from, the Court denied reopening.
Taylor’s Motion to Proceed in forma pauperis (ECF No. 16) shows that he is indigent,
but does not suggest any non-frivolous issues he intends to raise on appeal. To the extent the
Motion is addressed to this Court, it should be denied and the Court should extend its certificate
regarding frivolous issues to the Rule 60(b) Motion.
Mr. Taylor has also asked for an extension of sixty days to file a motion for certificate of
appealability (ECF No. 18). Because the Rule 60(b) Motion was a “true” motion for relief from
judgment as opposed to a motion to add new habeas corpus claims, the Magistrate Judge believes
Taylor does not require a certificate of appealability. That Motion should be denied as moot. If
the undersigned is incorrect on this point, Mr. Taylor can renew it before the Court of Appeals.
March 24, 2017.
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 mail. .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,
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