Brown v. Warden, London Correctional Institute

Filing 59

ORDER AND ENTRY: (1) ADOPTING THE TWO REPORT AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE (Doc. Nos. 43 , 47 ); (2) OVERRULING PETITIONERS OBJECTIONS (Doc. Nos. 44 , 55 , 58 ); (3) DENYING PETITIONER'S PETITION FOR WRIT OF HAB EAS CORPUS (Doc. No. 3 ) WITH PREJUDICE; (4) DENYING A CERTIFICATE OF APPEALABILITY; (5) CERTIFYING THAT ANY APPEAL WOULD BE OBJECTIVELY FRIVOLOUS AND FINDING THAT IN FORMA PAUPERIS STATUS SHOULD BE DENIED ON APPEAL; AND (6) TERMINATING THIS CASE ON THE DOCKET. Signed by Judge Michael J. Newman on 5/9/2022. (srb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 3:20-cv-00113-MJN-MRM Doc #: 59 Filed: 05/09/22 Page: 1 of 2 PAGEID #: 2343

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
LARRY E. BROWN, II,
Petitioner,

Case No. 3:20-cv-113

vs.
NORMAN ROBINSON, Warden,
London Correctional Institution,

District Judge Michael J. Newman
Magistrate Judge Michael R. Merz

Respondent.
______________________________________________________________________________
ORDER AND ENTRY: (1) ADOPTING THE TWO REPORT AND
RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE (Doc. Nos.
43, 47); (2) OVERRULING PETITIONER’S OBJECTIONS (Doc. Nos. 44, 55, 58); (3)
DENYING PETITIONER’S PETITION FOR WRIT OF HABEAS CORPUS (Doc. No. 3)
WITH PREJUDICE; (4) DENYING A CERTIFICATE OF APPEALABILITY; (5)
CERTIFYING THAT ANY APPEAL WOULD BE OBJECTIVELY FRIVOLOUS AND
FINDING THAT IN FORMA PAUPERIS STATUS SHOULD BE DENIED ON APPEAL;
AND (6) TERMINATING THIS CASE ON THE DOCKET
______________________________________________________________________________
This civil case is before the Court on the Report and Recommendation (Doc. No. 43) and
Supplemental Report and Recommendation (Doc. No. 47) issued by United States Magistrate
Judge Michael R. Merz (hereinafter referred to jointly as “Reports and Recommendations”), to
whom this case was referred pursuant to 28 U.S.C. § 636(b). Petitioner filed an objection to both
Report and Recommendations. Docs. 44, 55.
Magistrate Judge Merz also filed an order limiting the length of Petitioner’s reply brief to
20 pages, per S.D. Ohio Civ. R. 7.2(a). Doc. No. 56. Petitioner objects to this as well, contending
it interfered with his ability to present evidence to support his petition. Doc. No. 58. As required
by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has reviewed the comprehensive

Case: 3:20-cv-00113-MJN-MRM Doc #: 59 Filed: 05/09/22 Page: 2 of 2 PAGEID #: 2344

findings of the Magistrate Judge and considered de novo all filings in this matter, including
Petitioner’s objections.
Upon careful de novo consideration of the foregoing, the Court determines that the two
Report and Recommendations (Doc. Nos. 43, 47) should be adopted and that Petitioner’s
objections (Doc. Nos. 44, 55, 58) should be overruled. Magistrate Judge Merz correctly articulated
why Petitioner’s habeas claims were insufficient as a matter of law. See Doc. Nos. 43, 47.
Moreover, Magistrate Judge Merz’s ruling—that Petitioner was limited to 20 pages in his reply
brief—conforms to S.D. Ohio Civ. R. 7.2(a). The Court agrees with Magistrate Judge Merz’s
conclusions that page limits are common; they do not interfere with Petitioner’s right to present
legal arguments; and Petitioner already filed 385 pages of legal arguments, so a limitation was
necessary. Doc. No. 56 at PageID 2293–94. Accordingly, the Court: (1) ADOPTS the Reports
and Recommendations of the Magistrate Judge (Doc. Nos. 43, 47) in their entirety; (2)
OVERRULES Petitioner’s objections (Doc. Nos. 44, 55, 58); (3) DENIES Petitioner’s petition
(Doc. No. 3) WITH PREJUDICE; (4) DENIES Petitioner a certificate of appealability; (5)
CERTIFIES that any appeal would be objectively frivolous and finds that Petitioner should be
denied in forma pauperis status on appeal; and (6) TERMINATES this case on the Court’s docket.
IT IS SO ORDERED.
Date:

May 9, 2022

s/ Michael J. Newman
Hon. Michael J. Newman
United States District Judge

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