The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JOHNNIE LEE MOORE,
Petitioner, : Case No. 3:22-cv-189
- vs - District Judge Walter H. Rice
Magistrate Judge Michael R. Merz
WARDEN, Madison Correctional
Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS ON MOTION TO ALTER OR
AMEND THE JUDGMENT
This habeas corpus case, brought pro se by Petitioner Johnnie Lee Moore, is before the
Court on Petitioner’s Motion Under Fed.R.Civ.P. 59(e) to Alter or Amend the Judgment (ECF No.
40). As a post-judgment motion, it is deemed referred to the assigned Magistrate Judge for a report
and recommendations under 28 U.S.C. § 636(b)(3).
For a district court to grant relief under Rule 59(e), “there must be ‘(1) a clear error of law;
(2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to
prevent manifest injustice.’”Betts v. Costco Wholesale Corp., 558 F.3d 461, 474 (6th Cir. 2009)
(quoting Henderson v. Walled Lake Consol. Sch., 469 F.3d 479, 496 (6th Cir. 2006)).
Motions to alter or amend judgment may be granted if there is a clear
error of law, see Sault Ste. Marie Tribe, 146 F.3d at 374, newly
discovered evidence, see id., an intervening change in controlling
constitutional law, Collison v. International Chem. Workers Union,
Local 217, 34 F.3d 233, 236 (4th Cir. 1994); Hayes v. Douglas
Dynamics, Inc., 8 F.3d 88, 90-91 n.3 (1st Cir. 1993); School District
No. 1J v. ACANDS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), or to
prevent manifest injustice. Davis, 912 F.2d at 133; Collison, 34 F.3d
at 236; Hayes, 8 F.3d at 90-91 n.3. See also North River Ins. Co. v.
Cigna Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995).
To constitute "newly discovered evidence," the evidence must have
been previously unavailable. See ACandS, 5 F.3d at 1263; Javetz v.
Board of Control, Grand Valley State Univ. 903 F. Supp. 1181, 1191
(W.D. Mich. 1995)(and cases cited therein); Charles A. Wright, 11
Federal Practice and Procedure § 2810.1 at 127-28 (1995).
Gencorp, Inc. v. American Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999), accord, Nolfi v.
Ohio Ky. Oil Corp., 675 F.3d 538, 551-52 (6th Cir. 2011), quoting Leisure Caviar, LLC v. United
States Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010).
Petitioner first argues for amendment on the ground that “[t]he Court's decision does not
contain the specificity required to notify Mr. Moore why his petition was denied.” (ECF No. 40,
PageID 1339). He contends the Magistrate Judge relied on “multiple and often conflicting
rationales for denying” relief, but the District Judge’s decision “failed to provide its own
independent analysis.” Id.
An important reason for creating the Magistrate Judge system in 1968 was to provide
subordinate judicial officers who could analyze the contentions of parties and recommend a
disposition to the assigned District Judge. Parties get the benefit of judicial analysis for their cases
but the protection of an ultimate decisions by an Article III judge appointed by the President and
with life tenure. Every decision of a Magistrate Judge is appealable to a District Judge, but the
law does not require that the reviewing judge spell out an “independent” analysis. Here Judge
Rice has both adopted the Magistrate Judge’s Reports and Recommendations and overruled
Petitioner’s objections. Judge Rice avers that he has applied the correct standard of review – de
novo - and found no error of law in the Reports and Recommendations. With their adoption, they
have become the law of the case. There is no “clear error of law” in failing to write an
“independent” analysis.
Petitioner relies on Evans v Bexley, 750 F2d 1498, 1500 (11th Cir. 1985), but that case is
inapposite. The Eleventh Circuit reversed and remanded on the question of attorney fees which
the District Court had left undecided. In this case there are no undecided issues.
Petitioner also contends the judgment should be amended by granting him a certificate of
appealability. He contends that Judge Rice’s two recommittals in the case show that Petitioner
meets the “low standard” for a certificate of appealability, citing Frost v. Gilbert, 835 F.3d 883
(9th Cir. 2016).
In the first place, the two recommittals do not show reasonable jurists would disagree with
the result in the case. Instead they show, as Judge Rice found, that Petitioner’s Objections merited
“further analysis.” (ECF No. 31, PageID 1306).
Secondly, Frost is a Ninth Circuit decision which is not binding here. Our own Sixth
Circuit has written in a published binding decision:
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 US. 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 (6™ Cir. 2020).
Petitioner has not shown he is entitled to a certificate of appealability under the Sixth
Circuit standard. It was, therefore, not a clear error of law to deny him one.
Conclusion
Petitioner has not shown that the judgment in this case is infected with a clear error of law.
His Motion to Alter or Amended the Judgment should therefore be denied.
February 8, 2024.
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. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is recetved. 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. #
s/ Michael R. Merz
United States Magistrate Judge