Parrish v. Warden, Marion Correctional Institution

Filing 47

ORDER TO THE CLERK; REPORT AND RECOMMENDATIONS ON CERTIFICATE OF APPEALABILITY AND REQUEST FOR LEAVE TO APPEAL IN FORMA PAUPERIS re 3 Petition for Writ of Habeas Corpus filed by William A. Parrish, Jr., 46 MOTION for Leave to Appeal in forma pauperis filed by William A. Parrish, Jr. The Clerk is ORDERED to amend the docket to reflect the proper title and to advise the Sixth Circuit accordingly. Objections to R&R due by 1/10/2018. Signed by Magistrate Judge Michael R. Merz on 12/27/17. (pb)(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
WILLIAM A. PARRISH, JR.,
Petitioner,

:

- vs -

Case No. 3:16-cv-486
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

WARDEN, Marion
Correctional Institution,
:
Respondent.

ORDER TO THE CLERK; REPORT AND RECOMMENDATIONS ON
CERTIFICATE OF APPEALABILITY AND REQUEST FOR LEAVE
TO APPEAL IN FORMA PAUPERIS

This case is before the Court on Petitioner=s Notice of Appeal (ECF No. 46) which is
accompanied by a request to proceed on appeal in forma pauperis.
The Clerk has docketed this filing as a Motion for Leave to Appeal in forma pauperis,
but it is plainly labeled as a Notice of Appeal and the Clerk is ORDERED to amend the docket to
reflect the proper title and to advise the Sixth Circuit accordingly.
Parrish says “he wishes to appeal the judgment denying Petitioner’s Motion for Relief
from a Judgment or Order Pursuant to Federal Rules of Civil Procedure Rule 60 rendered on
November 21, 2017.” (ECF No. 46, PageID 2271). There is no such judgment. On November
21, 2017, the Magistrate Judge filed a Supplemental Report recommending that the Fed. R. Civ.
P. 60(b) motion be denied. That Supplemental Report contained the standard language advising
Parrish of his right to object and the time limits for doing so (ECF No. 44, PageID 2269). Any
objections would have been due not later than December 8, 2017. No objections were filed, and
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Judge Rice adopted the Supplemental Report and denied the Fed. R. Civ. P. 60(b) Motion on
December 13, 2017. Parrish’s Notice of Appeal is timely when calculated from that date, which
is the date of judgment on the Rule 60(b) Motion.
Because this is a habeas corpus case, the Sixth Circuit requires this Court to decide if a
certificate of appealability, limited to the issues raised in the 60(b) motion, should be granted.
Because reasonable jurists would not disagree with denial of that motion, 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.

December 27, 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,
153-55 (1985).

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