Parrish v. Warden, Marion Correctional Institution

Filing 65

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Having reconsidered the Motion in light of the Objections, the Magistrate Judge again recommends the Motion be denied. Because reasonable jurists would not disagree with this conclusion, Petitioner should b e 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. Objections to R&R due by 11/23/2018. Signed by Magistrate Judge Michael R. Merz on 11/9/2018. (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
WILLIAM A. PARRISH, JR.,
Petitioner,

:

- vs -

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

Warden, Marion
Correctional Institution
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This case is before the Court on Petitioner’s Objections (ECF No. 62) to the Magistrate
Judge’s Report and Recommendations (ECF No. 60) recommending that Petitioner’s Motion for
Relief from Judgment (ECF No. 58) be denied. District Judge Rice has recommitted the matter
for reconsideration in light of the Objections (ECF No. 64).
Judge Rice entered judgment in this case September 5, 2017 (ECF Nos. 36 & 37). As part
of the final order, the Judge dealt with Petitioner’s claims about the allegedly falsified transcript
certification page (ECF No. 36, PageID 2232, 2245) and expressly denied a certificate of
appealability (PageID 2248). Parrish appealed (ECF No. 38; Sixth Cir. Case No. 17-4051). The
Sixth Circuit also denied a certificate of appealability (ECF No. 51)
Despite the pendency of the appeal, Parrish moved for relief from judgment, again raising
issues about the trial transcript (ECF No. 39). Ultimately Judge Rice denied that Motion (ECF
No. 45). Parrish again appealed (ECF No. 46) and the Sixth Circuit again denied a certificate of
appealability (ECF No. 52).
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Parrish filed another Motion for Relief from Judgment (ECF No. 58) which the Magistrate
Judge has recommended be denied (Report, ECF No. 60). In his present Objections, seeks relief
from judgment on the ground that Assistant Attorney General Fosnaught “deliberately FORGED
the certification page attached to Petitioner’s trial transcript with the sole purpose to mislead this
Court in rendering its decision in Petitioner’s habeas corpus proceedings.” (ECF No. 62, PageID
2334). He asserts this alleged fact entitles him to relief from judgment under Fed. R. Civ. P.
60(b)(3) on the ground that this fraudulent act by Attorney Fosnaught resulted in the judgment.
Parrish’s Motion is without merit for the following reasons:
First of all, the issue has already been decided by Judge Rice who, along with the Sixth
Circuit, found it was not sufficiently debatable to warrant an appeal.
Second, the Certificate in question, which appears at ECF No. 18-3, PageID 1403 bears the
signatures of seven transcriptionists with AVTranz, the firm which transcribed the testimony from
Parrish’s trial. No evidence has been offered that any one of those signatures is not the genuine
signature of the persons signing, much less that any forgery was committed by Attorney
Fosnaught. Common Pleas Judge Dankof determined the initially inaccurate certification page
was the result of “sloppy clerical detail by AVTranz” and he ordered that firm to prepare a
completely new transcript (Order Denying New Trial, State Court Record ECF No. 18, PageID
412-13). Judge Dankof’s factual determination is entitled to deference from this Court which it
has already repeatedly received.
Third, Parrish claims “he is not arguing or challenging the dismissal of his habeas petition,
but asserting a new claim of fraud upon the court by A.A.G. Fosnaught. . . .” (ECF No. 62, PageID
2336). This is not a “new” claim, but repetition of a claim previously made and rejected. It is well
settled that a motion for relief from judgment under Fed. R. Civ. P. 60(b) is not a substitute for

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appeal. Polites v. United States, 364 U.S. 426 (1960); Ackerman v. United States, 340 U.S. 193
(1950). Parrish reasserts his claim of fraud in the face of a ruling by this Court that there was no
fraud, but also by this Court and the Sixth Circuit that the issue would not be debatable among
reasonable jurists.
Fourth, the Motion is untimely. Under Fed. R. Civ. P. 60(c), a motion under 60(b)(3) must
be made within one year of judgment. Judgment was entered in this case on September 5, 2017,
but Parrish did not file the instant Motion until September 19, 2018, when he deposited it in the
inmate filing system (See ECF No. 58, PageID 2320).
Finally, the Motion is substantively without merit. The Court did not enter judgment
against Parrish because it had been “defrauded” by Respondent’s counsel. Rather, the Court knew
of Parrish’s allegations of fraud before judgment and resolved them against him.

Frivolous Filings

Fed. R. Civ. P. 11 provides
(b) By presenting to the court (whether by signing, filing,
submitting, or later advocating) a pleading, written motion, or other
paper, an attorney or unrepresented party is certifying that to the best
of the person's knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such
as to harass or to cause unnecessary delay or needless
increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein
are warranted by existing law or by a nonfrivolous
argument for the extension, modification, or reversal of
existing law or the establishment of new law;

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(3) the allegations and other factual contentions have
evidentiary support or, if specifically so identified, are
likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably
based on a lack of information or belief.
The standard of conduct imposed on parties and attorneys by amended Rule 11 is
reasonableness under the circumstances. INVST Financial Group v. Chem-Nuclear Systems, Inc.,
815 F.2d 391, 401 (6th Cir. 1987); See also Business Guides, Inc., v. Chromatic Communications
Enterprises, Inc., 498 U.S. 533 (1991); Smith v. Detroit Federation of Teachers, 829 F.2d 1370
(6th Cir. 1987); Mihalik v. Pro Arts, Inc., 851 F.2d 790 (6th Cir. 1988). The court must test the
signer's conduct by inquiring what was reasonable to believe at the time of signing, and must avoid
using the "wisdom of hindsight." Mann v. G&G Mfg., Inc., 900 F.2d 953 (6th Cir. 1990); Century
Products, Inc., v. Sutter, 837 F.2d 247 (6th Cir. 1988); INVST, supra, at 401; Davis v. Crush, 862
F.2d 84, 88 (6th Cir. 1988). The Rule includes both a duty to investigate the facts, Albright v.
Upjohn, 788 F.2d 1217 (6th Cir. 1986), and the law, INVST, supra, at 402.
In the opinion of the undersigned, Petitioner’s continued presentation of his fraudulent
transcript argument is in violation of Rule 11. Further repetitive filings of this sort will result in
the recommendation of sanctions under Rule 11.

Conclusion

Having reconsidered the Motion in light of the Objections, the Magistrate Judge again
recommends the Motion be denied. Because reasonable jurists would not disagree with this
conclusion, Petitioner should be denied a certificate of appealability and the Court should certify
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to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be
permitted to proceed in forma pauperis.

November 9, 2018.
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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