Kaeding v. Warden, Lebanon Correctional Institution
Filing
62
REPORT AND RECOMMENDATIONS ON REQUEST TO FILE OBJECTIONS - Petitioner's Motion for Relief from Judgment (Doc. No. 61) should be denied. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous. Objections to R&R due by 11/4/2013. Signed by Magistrate Judge Michael R Merz on 10/18/2013. (kpf1)
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
MARK H. KAEDING,
:
Petitioner,
Case No. 1:11-cv-121
:
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz
-vsWARDEN, Lebanon Correctional
Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS ON REQUEST TO FILE
OBJECTIONS
This habeas corpus case is before the Court upon Petitioner’s Motion for Relief from
Judgment (Doc. No. 61).
The Motion is brought under Fed. R. Civ. P. 60(b) without specifying which sub-section
of the Rule Kaeding alleges is applicable. The Rule provides
(b) Grounds for Relief from a Final Judgment, Order, or
Proceeding. On motion and just terms, the court may relieve a
party or its legal representative from a final judgment, order, or
proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b);
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(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is
based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Because the Motion alleges that “[t]he court’s ruling is unfair and contains numerous and legal
inaccuracies and does not reflect all the pertinent facts,” the Magistrate Judge will treat the
Motion as made under Fed. R. Civ. P. 60(b)(1). This Court has jurisdiction to entertain the 60(b)
Motion because it attacks this Court’s prior judgment rather than attempting to add a new claim
for relief. Gonzalez v. Crosby, 545 U.S. 524 (2005).
Kaeding complains that at various points in the case, he has “directed” pleadings
“specifically to the district Court,” but “they were ruled on instead by the Magistrate.” (Motion,
Doc. No. 61, PageID 2075.) Under the Magistrates’ Act (28 U.S.C. § 636, et seq.), it is District
Judges, not litigants, who decide whether a matter will be considered in the first instance by a
Magistrate Judge. The District Judges of this Court have decided that all habeas corpus cases
filed pro se will be referred to Magistrate Judges (See General Order of Assignment and
Reference, February 23, 2011, available at www.ohsd.uscourts.gov.) Under this general referral
order, the Magistrate Judges decide non-dispositive motions and file reports and
recommendations on dispositive motions and on the merits. Litigants have the right to object to
any magistrate judge decision and obtain review by a District Judge, but they do not have the
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right to “direct” a pleading to a District Judge when that matter has been referred to a Magistrate
Judge. The instant Motion, having been filed post-judgment, is deemed referred under 28 U.S.C.
§ 636(b)(3) and is treated as dispositive.
Kaeding also complains again about the transfer of this case from Magistrate Judge
Litkovitz to Magistrate Judge Merz. As soon as he raised that objection, the undersigned
explained the transfer (Order, Doc. No. 29). The facts behind the transfer – the need to balance
the workload among Magistrate Judges in the District – were presented to him and he has offered
no rebuttal. The situation which prompted the transfer of this case continues and resulted in the
transfer of six habeas corpus cases from Cincinnati Magistrate Judges to the undersigned within
the last month. Litigants also do not have the right to choose which judicial officer(s) will
consider their cases. In particular, no precedent supports Kaeding’s claim that he has a “liberty
interest in having his petition completely dealt with by the original Magistrate.” (Motion, Doc.
No. 61, PageID 2068).
Kaeding has pointed to no legal or factual inaccuracy in this Court’s Order of September
30, 2013 (Doc. No. 56). There is no requirement that a District Judge, in adopting a report and
recommendations to which no objections have been filed, make extended findings of fact and
conclusions of law. Compare Fed. R. Civ. P. 52.
Kaeding argues Magistrate Judge Litkovitz found merit in his unexhausted claims and
that is why she recommended staying the case pending exhaustion of state court remedies
(Motion, Doc. No. 61, PageID 2067). Instead, what Judge Litkovitz found was “the Court
cannot conclude that all of petitioner’s unexhausted claims are ‘plainly meritless.’” (Report and
Recommendations on Motion for Stay, Doc. No. 17, PageID 1346, quoting Rhines v. Weber, 544
U.S. 269 at 277-78 (2005).) Magistrate Judge Litkovitz’s review of those claims was, of course,
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before the Ohio courts had finished their review. After exhaustion, this Court’s obligation was to
review those claims under the AEDPA standard of deference in 28 U.S.C. § 2254(d)(1). The
undersigned stated that standard of review and then applied it in the Report adopted by the Court
(See Report and Recommendations, Doc. No. 45, PageID 1825.)
Kaeding’s final argument is that he is “actually innocent of the charges against me.”
(Motion, Doc. No. 61, PageID 2076). In the Report and Recommendations on the merits which
this Court has adopted, the Magistrate Judge quoted the relevant legal standard from Schlup v.
Delo, 513 U.S. 298 (1995):
To come within the actual innocence exception to the required
showing of cause and prejudice with respect to an abuse of the
writ, a habeas petitioner or §2255 movant must show that a
constitutional violation has probably resulted in the conviction of
one who is actually innocent. That is, the petitioner must show that
it is more likely than not that no reasonable juror would have found
him guilty beyond a reasonable doubt’ in the light of the new
evidence he or she is tendering.
(Report and Recommendations, Doc. No. 45, PageID 1853.) The Report concluded:
As the Warden points out, Kaeding has presented no new evidence
of actual innocence. Every piece of evidence to which he points
was available at the time of trial and either known to him or readily
discoverable by him (i.e., the Konicki affidavits filed in this case in
the Hamilton County Municipal Court). Kaeding does not meet the
Supreme Court’s actual innocence standard.
Id. Kaeding has never filed a specific objection to this conclusion, i.e., an objection which points
to new evidence of his actual innocence which meets the Schlup standard, and he does not cite
any such evidence in his instant Motion.
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Conclusion
There is no procedural irregularity or substantive unfairness in the Court’s Order
adopting the Report and Recommendations. Therefore Petitioner’s Motion for Relief from
Judgment (Doc. No. 61) should be denied. Because reasonable jurists would not disagree with
this conclusion, Petitioner should be denied a certificate of appealability and the Court should
certify to the Sixth Circuit that any appeal would be objectively frivolous.
October 18, 2013.
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 one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). 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 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).
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