Folley v. Foley, No. 3:2022cv00065 - Document 196 (S.D. Ohio 2022)
Court Description: DECISION DENYING PETITIONER'S MOTION TO VACATE 195 . Signed by Magistrate Judge Michael R. Merz on 10/28/2022. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Folley v. Foley Doc. 196 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON DEREK FOLLEY, Petitioner, : - vs - Case No. 3:22-cv-065 District Judge Thomas M. Rose Magistrate Judge Michael R. Merz KEITH J. FOLEY, Warden, : Respondent. DECISION DENYING PETITIONER’S MOTION TO VACATE This habeas corpus case, brought pro se by Petitioner Derek Folley under 28 U.S.C. § 2254, is before the Court on Petitioner’s Motion (ECF No. 195) to Vacate on the Basis of Inadvertence or Mistake the Magistrate Judge’s Report and Recommendation of October 14, 2022 (the “Report,” ECF No. 177). Folley moves to vacate the Report under Fed.R.Civ.P. 60 because "The Petitioner" never intended for "The Petitioner's Traverse" to be a response for "The Respondent's Motion To Dismiss" in this judicial proceeding. This was a clerical mistake manifested by the Clerk Of Court.” (ECF No. 195, PageID 2322). Petitioner’s cited authority is Fed.R.Civ.P. 60 which applies only to final judgments, not interlocutory matters. A Report and Recommendation is interlocutory and not subject to vacation under Rule 60. The Motion to Vacate is DENIED. October 28, 2022. s/ Michael R. Merz United States Magistrate Judge 1 Dockets.Justia.com
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