Hartman v Warden Chillicothe Correctional

Filing 63

REPORT AND RECOMMENDATIONS - The Magistrate Judge respectfully recommends Petitioner's Motion For Indicative Ruling On A Motion For Relief That Is Barred By A Pending Appeal Pursuant To Federal Rules Of Civil Procedure Rule 62.1 (ECF No. 61) be denied without prejudice to its renewal if Petitioner files a motion for relief from judgment. This recommendation implies no opinion on the respective positions of the parties on the Motion. Objections to R&R due by 9/12/2024. Signed by Magistrate Judge Michael R. Merz on 8/29/2024. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MARK HARTMAN,
Petitioner,

:

- vs -

Case No. 3:19-cv-003
District Judge Walter H. Rice
Magistrate Judge Michael R. Merz

OHIO ADULT PAROLE AUTHORITY,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner’s Motion For Indicative Ruling
On A Motion For Relief That Is Barred By A Pending Appeal Pursuant To Federal Rules Of Civil
Procedure Rule 62.1 (ECF No. 61). Respondent opposes the Motion (ECF No. 62) and the time
within which Petitioner might have filed a reply memorandum in support has expired, but no reply
has been filed. See S. D. Ohio Civ. R. 7.2.
Fed.R.Civ.P. 62.1 provides:
(a) Relief Pending Appeal. If a timely motion is made for relief that
the court lacks authority to grant because of an appeal that has been
docketed and is pending, the court may:
(1) defer considering the motion;
(2) deny the motion; or
(3) state either that it would grant the motion if the court of appeals
remands for that purpose or that the motion raises a substantial issue.
(b) Notice to the Court of Appeals. The movant must promptly
notify the circuit clerk under Federal Rule of Appellate Procedure
12.1 if the district court states that it would grant the motion or that
the motion raises a substantial issue.
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(c) Remand. The district court may decide the motion if the court
of appeals remands for that purpose.
This Court’s final judgment in this habeas corpus case (ECF Nos. 45 and 46) has been
appealed to the Sixth Circuit and is currently pending under that Court’s Case No. 23-3309.
Petitioner has cross-appealed under Case No. 23-3365 and both appeals remain pending.
Filing a notice of appeal divests the District Court of jurisdiction over a case and vests
jurisdiction in the Circuit Court of Appeals until the district court receives the mandate of the court
of appeals. Marrese v. American Academy of Osteopathic Surgeons, 470 U.S. 373 (1985); Pickens
v. Howes, 549 F.3d 377, 381 (6th Cir. 2008); Pittock v. Otis Elevator Co., 8 F.3d 325, 327 (6th Cir.
1993); Lewis v. Alexander, 987 F.2d 392, 394 (6th Cir. 1993); Cochran v. Birkel, 651 F.2d 1219,
1221 (6th Cir. 1981). This Court would therefore lack jurisdiction to consider a motion for relief
from judgment under Fed.R.Civ.P. 60(b).
To expedite the appellate process, when a litigant files an obviously meritorious or
obviously frivolous motion for relief from judgment, the Supreme Court adopted Fed.R.Civ.P.
62.1 in 2009 to allow district and appellate courts to exercise a measure of shared jurisdiction over
a case on appeal.
However, the premise for exercising that shared jurisdiction is the actual filing of a motion
for relief, which Petitioner has not done. Respondent assumes that such a motion would be made
under Fed.R.Civ.P. 60(b) and opposes the instant Motion on that basis, but the Magistrate Judge
believes the Court lacks jurisdiction to rule – even indicatively – on a motion that is only
hypothetical. Indeed, to do so would raise constitutional questions. “(T)he federal courts
established pursuant to Article III of the Constitution do not render advisory opinions. For
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adjudication of constitutional issues ‘concrete legal issues, presented in actual cases, not
abstractions' are requisite.” Golden v. Zwickler, 394 U.S. 103, 108 (1969), quoting Utd. Pub.
Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 89 (1947) (parentheses in original) (internal
quotation marks omitted). See Correspondence of the Justices (1793), quoted at Hart & Wechsler,
Federal Courts and the Federal System (1st ed.) at 75.
Accordingly, the Magistrate Judge respectfully recommends the instant Motion be denied
without prejudice to its renewal if Petitioner files a motion for relief from judgment. This
recommendation implies no opinion on the respective positions of the parties on the Motion.

August 29, 2024.
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. 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. 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.

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