The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
BRIAN THOMA,
Petitioner, : Case No. 1:20-cv-282
- vs - District Judge Timothy S. Black
Magistrate Judge Michael R. Merz
WARDEN,
Pickaway Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS ON MOTION TO VACATE
JUDGMENT
This habeas corpus case is before the Court on Petitioner’s Motion to Amend which seeks in
part to alter the Court’s judgment as to the merits, but also to vacate the Court’s judgment as to several
procedural matters (ECF No. 23). This Report deals only with the motion to vacate portion of the
Motion; Respondent has an opportunity to respond to the motion to amend portion until January 6,
2021.
As a post-conviction matter, the motion to vacate requires a report and recommendations from
an assigned Magistrate Judge, rather than a decision.
Petitioner moves “for relief from judgment, in specific the portions of order indicating that
he did not object to the Magistrate’s report and denying a certificate of appealability.” (ECF No.
23, PageID 1022).
District Judge Black’s Order Adopting Report and Recommendations recites “noting that
no objections have been filed thereto and that the time for filing such objections under Fed. R. Civ.
P. 72(b) has expired. . .” (ECF No. 21, PageID 1020). If that finding were incorrect, Rule 60
would authorize the Court to amend it. But the finding is manifestly accurate: no objections have
ever been filed to the Report.
Counsel claims her failure to file objections was the result of excusable neglect, remediable
under Fed.R.Civ.P. 60(b)(1):
The undersigned was surprised to receive the Court’s decision on
November 18th, because she did not recall receiving the Magistrate
Judge’s filing on October 28th. The undersigned immediately
reviewed her email to assess how she missed the filing and
discovered that the Court’s ECF notification was only received in
her backup personal email account (gatorjenni@gmail.com), which
she checks rarely and does not monitor. [Footnote: As of the filing
of this motion, that email address contains 209,198 emails, the vast
majority of which are unread and most of which are spam,
advertisements from retailers, or junk.] For reasons unknown to the
undersigned, the ECF notification did not reach her work email
address, kinsleylawoffice@gmail.com.
(ECF No. 23, PageID 1031).
Whether these facts constitute excusable neglect depends on the broader context of
electronic filing in this case. Attorneys registering for electronic filing must provide the Court
with email addresses to which Notices of Electronic Filing (NEF’s) are to be sent. Attorney
Kinsley provided the Court with two such emails addresses: gatorjenni@gmail.com and
kinsleylawoffice@gmail.com. The Court’s CM/ECF system, faithful to the algorithm the Court
has given it, has sent all the NEF’s in this case to both email addresses provided by Attorney
Kinsley. See, e.g. the NEF for Judge Black’s adoption Order which reads:
1:20-cv-00282-TSB-MRM Notice has been electronically mailed
to:
Jennifer M Kinsley kinsleylawoffice@gmail.com,
gatorjenni@gmail.com
Daniel J. Benoit Daniel.Benoit@ohioattorneygeneral.gov,
brenda.carter@ohioattorneygeneral.gov,
brian.higgins@ohioattorneygeneral.gov,
habeas.docketclerk@ohioattorneygeneral.gov,
jenna.ansel@ohioattorneygeneral.gov
The NEF for the Report and Recommendations, which Attorney Kinsley claims1 she
received only in her personal email account, is identical:
1:20-cv-00282-TSB-MRM Notice has been electronically mailed
to:
Jennifer M Kinsley kinsleylawoffice@gmail.com,
gatorjenni@gmail.com
Daniel J. Benoit Daniel.Benoit@ohioattorneygeneral.gov,
brenda.carter@ohioattorneygeneral.gov,
brian.higgins@ohioattorneygeneral.gov,
habeas.docketclerk@ohioattorneygeneral.gov,
jenna.ansel@ohioattorneygeneral.gov
NEF’s in this form are not an innovation at this stage of the case. The NEF for the Petition
itself (ECF No. 1) reads:
1:20-cv-00282-TSB-KLL Notice has been electronically mailed
to:
Jennifer M Kinsley kinsleylawoffice@gmail.com,
gatorjenni@gmail.com2
Before electronic filing, the Court would have sent copies of court-generated filings to
whatever postal address counsel had provided, but not to two such addresses. Electronic filing
enables the Court to send notice at no cost to more than one email address, again as requested by
1 There is good reason to be skeptical of the claim. When the CM/ECF system sends an email to an address and it is
not received, the Court receives a “bounce” notice. None was received for the NEF on the Report and
Recommendations.
2 Before the Order for Answer, there were no other attorneys with appearances in the case to be notified of filings.
counsel, to email addresses provided by counsel. Prior to electronic filing, it would not have
constituted excusable neglect for an attorney to tell the Court “I just didn’t open my mail.” The
Magistrate Judge of course understands the phenomenon of junk email and experiences it himself.
But if an attorney has an email account that has accumulated 209,198 messages, why give that email
address to the Court as one of two places to send time-sensitive notices of filing?
Furthermore, counsel’s assertion that the NEF for the Report was not received in her
professional email account is belied by the Court’s CM/ECF records which show that NEF was
received in both accounts:
Back Select Recipient Name: Start a New
kinsleylawoffice@qmail.com - 1010 Me Search
Envelope and Header Information
Sender: cmecthelpdesk@ohsd_uscourts.gov
Recipients: kinsleylawoffice@gmail.com
Activity in Case 1:20-cv-00262-TSB-MRM Thoma v.
Subject: Warden Pickaway Correctional Institution Report and
Recommendations
Message-ID Header: 7329352@ohsd_uscourts.gov
Message Size: 3.71 (KB)
lronport Host: 156.119.195_22
Message Timestamp: 10/29/20 13:24:33 -07
Sending Host IP Address: 156.119.190.195
Message Delivery Information
10/26/20 13:24:34 -07 Message Successtully delivered to
kinsleylawofice@gqmail.com at 173.194.204.265.
Response ‘2.0.0 OK 1603905874 g27si124187qve.d7 -
gsmtp
Back Select Recipient Name: start a New
gatorjenni@gmail.com - 1010 search
Envelope and Header Information
Sender: cmecthelpdesk@ohsd_uscourts.gov
Recipients: gatorjenni@gmail.com
Activity in Case 1:20-cv-00262-TSB-MRM Thoma v.
Subject: Warden Pickaway Correctional Institution Report and
Recommendations
Message-ID Header: □□□□□□□□□□□□□□□□□□□□□□□□□
Message Size: 3.71 (KB)
Ironport Host: 156.179.195.22
Message Timestamp: 10/26/20 13:24:33 -07
Sending Host IP Address: 156.119.190.195
Message Delivery Information
10/26/20 13:24:34 -07 Message Successfully delivered to gatorjenni@gmail.com
at 173.194.204.26. Response ‘2.0.0 OK 1603905674
u17sit11450gtg.163 - gsmtp’
Accordingly, it is respectfully recommended that that portion of the pending Motion seeking
to vacate the Court’s finding that no objections were filed should be denied.
Certificate of Appealability
Based on the same proffered excuse, Counsel seeks to vacate that portion of the judgment
which denied a certificate of appealability. The Report recommended that a certificate of appealability
be denied (ECF No. 20 PageID 1018). Rule 11 of the Rules Governing § 2254 requires district courts
to address this issue when entering judgment which is why recommendations on that issue are regularly
included in habeas corpus reports and recommendations by the undersigned.
The Sixth Circuit has made it clear that certificates of appealability are not to be routinely
issued.
In short, a court should not grant a certificate without some
substantial reason to think that the denial of relief might be incorrect.
Crucially, in applying this standard, a court must consider not only
the merits of the underlying constitutional claim but also any
procedural barriers to relief. Buck v. Davis, 137 S. Ct. 759, 777, 197
L. Ed. 2d 1 (2017); Slack [v. McDaniel], 529 U.S. at 484-85; see
also Dufresne v. Palmer, 876 F.3d 248, 254 (6th Cir. 2017). To put
it simply, a claim does not merit a certificate unless every
independent reason to deny the claim is reasonably debatable.
[T]he standards for a certificate are no mere technicality. Quite the
contrary. By authorizing extra appeals, improper certificates add to
the "profound societal costs" of habeas litigation while sapping
limited public resources. Calderon v. Thompson, 523 U.S. 538, 554,
118 S. Ct. 1489, 140 L. Ed. 2d 728 (1998) (quoting Smith v. Murray,
477 U.S. 527, 539, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986)). For
one, they divert our time and attention from the cases Congress
actually meant us to hear, often leading us to appoint counsel and
schedule argument in cases that we later find to be insubstantial. For
another, they require state and federal government attorneys to
devote their time and attention to defending appeals that should
never have existed. Plus, they may even harm those habeas
petitioners whose claims really do merit an appeal because it could
"prejudice the occasional meritorious [claim] to be buried in a flood
of worthless ones." Brown v. Allen, 344 U.S. 443, 537, 73 S. Ct. 397,
97 L. Ed. 469 (1953) (Jackson, J., concurring). In short, it's critical
that courts follow the rules Congress set.
Moody v. United States, 958 F.3d 485 (6th Cir. 2020).
Petitioner has offered no separate argument as to why reasonable jurists would disagree
with this Court’s disposition of the issues raised in the Petition and has thus not shown that denial
of a certificate of appealability was error. The Court should therefore also decline to amend that
portion of Order that concludes no certificate should be issued. That issue can be reconsidered in
the context of Petitioner’s Motion to Amend the Judgment.
December 17, 2020.
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. 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. 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.