Brown v. Warden, London Correctional Institute

Filing 66

ORDER AND ENTRY: (1) ADOPTING THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE (Doc. No. 64 ); (2) DENYING WITH PREJUDICE PETITIONERS MOTION FOR RECONSIDERATION (Doc. No. 63 ); (3) OVERRULING PETITIONERS OBJECTION (Doc. No. 65 ) ; (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) CLARIFYING THAT THIS CASE REMAINS TERMINATED ON THE DOCKET. Signed by Judge Michael J. Newman on 6/27/2022. (srb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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 REPORT AND RECOMMENDATION OF
THE UNITED STATES MAGISTRATE JUDGE (Doc. No. 64); (2) DENYING WITH
PREJUDICE PETITIONER’S MOTION FOR RECONSIDERATION (Doc. No. 63); (3)
OVERRULING PETITIONER’S OBJECTION (Doc. No. 65); (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) CLARIFYING
THAT THIS CASE REMAINS TERMINATED ON THE DOCKET
______________________________________________________________________________
This civil case is before the Court on Petitioner’s Fed. R. Civ. P. 59(e) Motion for
Reconsideration (Doc. No. 63) of this Court’s May 9, 2022 order (Doc. No. 59) and the Report
and Recommendation on Petitioner’s Motion for Reconsideration (Doc. No. 64) issued by United
States Magistrate Judge Michael R. Merz, to whom this case was referred pursuant to 28 U.S.C. §
636(b). Petitioner filed an objection to the Report and Recommendation. Doc. No. 65. As
required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has reviewed the
comprehensive 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 Report
and Recommendation (Doc. No. 64) should be adopted and that Petitioner’s objection (Doc. No.

65) should be overruled. Judge Merz correctly noted that Petitioner’s arguments fail to meet the
Fed. R. Civ. P. 59(e) standard, considering Petitioner makes the same arguments that this Court
already rejected. See Doc. No. 64 at PageID 2373–76. Likewise, Petitioner’s arguments, as Judge
Merz properly found, are forfeited based on the state procedural bar applicable here. Id. at PageID
2375. Accordingly, the Court: (1) ADOPTS the Report and Recommendation of the Magistrate
Judge (Doc. No. 64) in its entirety; (2) DENIES WITH PREJUDICE Petitioner’s Motion for
Reconsideration (Doc. No. 63); (3) OVERRULES Petitioner’s objection (Doc. No. 65); (4)
DENIES Petitioner a certificate of appealability; and (5) CERTIFIES that any appeal would be
objectively frivolous and finds that Petitioner should be denied in forma pauperis status on appeal.
This case remains TERMINATED on the docket.
IT IS SO ORDERED.
Date:

June 27, 2022

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

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