Eziolisa v. USA
Filing
46
ENTRY AND ORDER OVERRULING EZIOLISAS OBJECTIONS TOTHE SUPPLEMENTAL REPORT AND RECOMMENDATIONSREGARDING HIS RULE 60(b)(1) MOTION (Doc. # 70); OVERRULINGEZIOLISAS OBJECTIONS TO THE SUPPLEMENTAL REPORT ANDRECOMMENDATIONS REGARDING HIS § 2255 MOTION (Doc. #71);VACATING THIS COURTS PRIOR ORDER ADOPTING THE REPORTAND RECOMMENDATIONS REGARDING EZIOLISAS § 2255MOTION (Doc. # 62); ADOPTING THE SUPPLEMENTAL REPORT ANDRECOMMENDATIONS REGARDING EZIOLISAS RULE 60(b)(1)MOTION (Doc. #66) AND THE SUPP LEMENTAL REPORT ANDRECOMMENDATIONS REGARDING EZIOLISAS § 2255 MOTION(Doc. #69) IN THEIR ENTIRETY; DENYING EZIOLISAS RULE 60(b)(1)MOTION WITH PREJUDICE; DENYING A CERTIFICATE OFAPPEALABILITY REGARDING THIS FINDING; CERTIFYING THATAN APPEAL OF THI S FINDING WOULD BE OBJECTIVELYFRIVOLOUS; DISMISSING EZIOLISAS § 2255 MOTION WITHPREJUDICE, DENYING A CERTIFICATE OF APPEALABILITYREGARDING THIS FINDING; AND CERTIFYING THAT ANY APPEALOF THIS FINDING WOULD BE OBJECTIVELY FRIVOLOUS. Signed by Judge Thomas M Rose on 10/15/13. (ep)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
UNITED STATES OF AMERICA
Case No. 3:10-cr-039
Plaintiff,
Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
-vCHUKWUEMEKA O. EZIOLISA,
Defendant.
______________________________________________________________________________
ENTRY AND ORDER OVERRULING EZIOLISA’S OBJECTIONS TO
THE SUPPLEMENTAL REPORT AND RECOMMENDATIONS
REGARDING HIS RULE 60(b)(1) MOTION (Doc. # 70); OVERRULING
EZIOLISA’S OBJECTIONS TO THE SUPPLEMENTAL REPORT AND
RECOMMENDATIONS REGARDING HIS § 2255 MOTION (Doc. #71);
VACATING THIS COURT’S PRIOR ORDER ADOPTING THE REPORT
AND RECOMMENDATIONS REGARDING EZIOLISA’S § 2255
MOTION (Doc. # 62); ADOPTING THE SUPPLEMENTAL REPORT AND
RECOMMENDATIONS REGARDING EZIOLISA’S RULE 60(b)(1)
MOTION (Doc. #66) AND THE SUPPLEMENTAL REPORT AND
RECOMMENDATIONS REGARDING EZIOLISA’S § 2255 MOTION
(Doc. #69) IN THEIR ENTIRETY; DENYING EZIOLISA’S RULE 60(b)(1)
MOTION WITH PREJUDICE; DENYING A CERTIFICATE OF
APPEALABILITY REGARDING THIS FINDING; CERTIFYING THAT
AN APPEAL OF THIS FINDING WOULD BE OBJECTIVELY
FRIVOLOUS; DISMISSING EZIOLISA’S § 2255 MOTION WITH
PREJUDICE, DENYING A CERTIFICATE OF APPEALABILITY
REGARDING THIS FINDING; AND CERTIFYING THAT ANY APPEAL
OF THIS FINDING WOULD BE OBJECTIVELY FRIVOLOUS
______________________________________________________________________________
This matter comes before the Court pursuant to pro se Defendant Chukwuemeka O.
Eziolisa’s (“Eziolisa’s”) objections to two (2) Supplemental Report and Recommendations filed
by Magistrate Judge Michael R. Merz. The first Supplemental Report and Recommendations
regarding Eziolisa’s Rule 60 (b)(1) Motion (doc. #66) was filed on September 4, 2013, and the
other Supplemental Report and Recommendations regarding Eziolisa’s § 2255 Motion (doc.
#69) was filed on September 5, 2013.
In a Report and Recommendations (doc. #60) and a Supplemental Report and
Recommendations (doc. #66), Magistrate Judge Merz recommends that Ezioliza’s Rule 60(b)(1)
Motion be denied with prejudice, Eziolisa be denied a certificate of appealability and this Court
should certify that any appeal would be objectively frivolous. Eziolisa objected to both although
his objection to the Report and Recommendations is rendered moot by the filing of the
Supplemental Report and Recommendations.
In another Report and Recommendations (doc. #58) and Supplemental Report and
Recommendations (doc. #69), Magistrate Judge Merz recommends that Eziolisa’s § 2255
Motion be dismissed with prejudice, that Eziolisa be denied a certificate of appealability and that
this Court certify that any appeal of this issue would be objectively frivolous. Magistrate Judge
Merz also recommends that this Court’s Order adopting his initial Report and Recommendations
on Eziolisa’s § 2255 Motion be vacated because Eziolisa was not properly sent a copy of this
Report and Recommendations. Eziolisa objected to both the Report and Recommendations and
the Supplemental Report and Recommendations. One of his objections, regarding of the Report
and Recommendations, has been addressed and the remaining objections to the Report and
Recommendations are rendered moot by the filing of the Supplemental Report and
Recommendations.
As required by 28 U.S.C. §636(b) and Federal Rules of Civil Procedure Rule 72(b), the
District Judge has made a de novo review of the record in this case. Upon said review, the Court
finds that Eziolisa’s Objections to the Magistrate Judge’s Supplemental Report and
Recommendations regarding Eziolisa’s Rule 60(b)(1) Motion (doc. #70) are not well-taken, and
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they are hereby OVERRULED. The Court also finds that Eziolisa’s Objections to the Magistrate
Judge’s Supplemental Report and Recommendations regarding his § 2255 Motion are not welltaken and they are overruled.
This Court’s Order adopting the Report and Recommendations regarding Eziolisa’s §
2255 Motion (doc. #62) is vacated. However, the Magistrate Judges Supplemental Report and
Recommendations regarding Eziolisa’s Rule 60(b)(1) Motion And the Magistrate Judge’s
Supplemental Report and Recommendations regarding Eziolisa’s § 2255 Motion are adopted in
their entirety. Eziolisa’s Rule 60(b)(1) Motion is denied with prejudice, Eziolisa is denied a
certificate of appealability regarding this finding and this Court certifies that any appeal of this
finding would be objectively frivolous. Also, Eziolisa’s § 2255 Motion is dismissed with
prejudice, Eziolisa is denied a certificate of appealability regarding this finding and this Court
certifies that any appeal of this finding would be objectively frivolous.
DONE and ORDERED in Dayton, Ohio, this Fifteenth Day of October, 2013.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATED DISTRICT JUDGE
Copies furnished to:
Counsel of Record
Chukwuemeka O. Eziolisa at his last address of record
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