Petition for Writ of Certiorari — Jerome Henderson, Petitioner v. Terry Collins, Warden

Case: 15-302 Document: 6-1 Filed: 11/29/2018 Page: 1

Case No. 15-302

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

In re: JEROME HENDERSON

Petitioner

BEFORE: BATCHELDER, CLAY and DONALD, Circuit Judges

Upon consideration of the petition for rehearing filed by the Petitioner,

It is ORDERED that the petition for rehearing be, and it hereby is, DENIED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

Issued: November 29, 2018

APPENDIX D

Pages 2

(1 of 2)

FLED

Aug 08, 2018

DEBORAH S. HUNT, Clerk

In re: JEROME HENDERSON,

ORDER

Petitioner.

)

BefOre: BATCHELDER, CLAY, and DONALD, Circuit Judges.

..

The petitioner, an Ohio inmate under a capital sentence, filed this pro se petition for leave

to appeal an order denying his motion under Federal Rule of Civil Procedure 60(b)(6).

.

Additionally, he filed a notice of appeal directly from the same order, resulting in an appeal

docketed in this court. Henderson v. Robinson, No. 15-3490. The court denied his motion for a

certificate of appealability in that case, thus disposing of that appeal.

It is a prerequisite to a petition for permission to appeal that the district court certify

under 28 U.S.C. §1292(b) that an order is appropriate for immediate appeal There was no such

certification in this case In the absence of such a certification, there is no basis for a petition for

permission to appeal Lynch v .Johns-Manville Sales Corp, 701 F 2d 44 (6th Cir. 1983).Also,

the petitioner's challenges,to the denial of Rule 60(b) relief could have been raised in the direct

appeal at 15-3490. The denial of a certificate of appealability in that case has rendered any

attempts to appeal the same order moot.

This petition therefore is DISMISSED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk.

APPENDIX C

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Jerome Henderson,

Case No. 1:94ev106

Petitioner,

District Judge Michael Barrett

Magistrate Judge Michael R. Merz

V.

Terry Collins, Warden

Respondent.

This matter is before the Court upon the Magistrate Judge's April 24, 2017 Report and

Recommendation ("R&R"), recommending that Petitioner's Rule 60(b)(6) motion be denied

(Doc. 246). Petitioner filed Objections to the R&R on May 16, 2017 (Doc. 247) and Respondent

filed a response (Doe. 248). Also before the Court are Petitioner's Objections to two Notation

Orders issued by the Magistrate Judge striking Petitioner's reply and denying Petitioner's motion

to appoint counsel. (Does. 251, 254).

As the Magistrate Judge explained, Petitioner's pro se motion seeks relief from the

Court's March 27, 2015 Order (Doe. 231) adopting the Magistrate Judge's Report and

Recommendation (Doe. 221) that Petitioner's prior motion for relief from judgment be denied

(Doe. 207).

The Magistrate Judge reached three primary conclusions. First, the Magistrate Judge

concluded, to the extent Petitioner argued he rights under § 3599 were violated, that Petitioner's

attorney cannot be forced by Petitioner to file frivolous motions. Indeed, an attorney has an

ethical obligation not to do so. Second, the Magistrate Judge rejected Petitioner's argument that

there existed "irregularities or procedural defects" entitling him to relief because he was not

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APPENDIX E

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personally served with documents. The Magistrate Judge explained that a litigant represented by

counsel does not have a right to be personally served with documents in a case. Relatedly, the

Magistrate Judge also concluded Petitioner's motion fails on the merits, as he has not shown a

procedural defect warranting relief. Finally, the Magistrate Judge concluded Petitioner's Motion

fails on procedural grounds because the issues raised were available to him on his appeal.

When objections to a magistrate judge's report and recommendation are received on a

dispositive matter, the assigned district judge "must determine de novo any part of the magistrate

judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3). After review,

the district judge "may accept, reject, or modify the recommended disposition; receive further

evidence; or return the matter to the magistrate judge with instructions." Id.; see also 28 U.S.C.

§ 636(b)(1). General objections are insufficient to preserve any issues for review: "[a] general

objection to the entirety of the Magistrate [Judge]'s report has the same effect as would a failure

to object." Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).

Nevertheless, the objections of a petitioner appearing pro se will be construed liberally. See

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

When objections to an order of a magistrate judge are received on a non-dispositive

matter, the district judge must consider timely objections and modify or set aside any part of the

order that is clearly erroneous or is contrary to law. Fed. R. Civ. P. 72.

Petitioner's objections to the Magistrate Judge's R&R (Doc. 247) fail to object to any

specific portion of the R&R as is required by Rule 72(b)(2). Accordingly, Petitioner's objections

are insufficient to direct the Court's attention to any particular issues contained therein, and are

without merit. Instead, Petitioner's 40-page document is effectively a successive habeas corpus

petition. (See generally Doc. 247).

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Upon review, the Court finds no error in the Magistrate Judge's recommendation that

Petitioner's Rule 60(b) motion should be denied. Petitioner's objections (Doc. 247) are therefore

OVERRULED.

After consideration of Petitioner's remaining objections (Docs. 251, 254), the

undersigned concludes that neither order issued by the Magistrate Judge is clearly erroneous or

contrary to law.

Consistent with the foregoing, the Court hereby ADOPTS the Magistrate Judge's R&R

(Doc. 246). Petitioner's objections (Docs. 247, 251, 254) are OVERRULED.

IT IS SO ORDERED.

s/Michael R. Barrett

Michael R. Barrett, Judge

United States District Court

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

JEROME HENDERSON,

Petitioner,

-

vs

:

Case No. 1:94-cv-106

District Judge Michael R. Barrett

Magistrate Judge Michael R. Merz

-

TERRY COLLINS, Warden,

Southern Ohio Correctional Facility,

Respondent.

This capital habeas corpus case is before the Court on Petitioner's pro se Motion for

Relief from Judgment under Fed. R. Civ. P. 60(b)(6)(ECF No. 245). Although the Motion was

not docketed until April 21, 2017, Henderson is entitled to a filing date of April 17, 2017, when

he placed the Motion in the prison mail system.

Mr. Henderson seeks relief from the Court's Order of March 27, 2015 (ECF No. 231)

adopting the Magistrate Judge's Report and Recommendations (ECF No. 221) recommending

that Henderson's prior Motion for Relief from Judgment (ECF No. 207) be denied.

Henderson's claim under Rule 60 is that the judgment denying his prior Motion for Relief

from Judgment "occurred because of the magistrate judges' [sic] irregularities or procedural

defects in the procurement of the judgment denying relief." (ECF No. 245, PagelD 857.)

Therefore this Court has jurisdiction to decide the Motion, in contrast to a Rule 60(b) motion

which seeks to plead a new claim in habeas, which would require prior permission from the court

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of appeals to proceed. Gonzalez v. Crosby, 545 U.S. 524 (2005); Franklin v. Jenkins, 839 F.3d

465 (6th Cir. 2016); Burton v. Stewart, 549 U.S. 147 (2007).

Relevant Procedural History

Henderson's prior Motion to Reopen was filed by him pro se on March 19, 2013 (ECF

No. 207). The Motion was fully briefed by April 22, 2013 (ECF No. 212). In December 2013,

Judge Spiegel granted Henderson's Motion to Correct his Rule 60 Motion (ECF Nos. 213, 214).

However Judge Spiegel had not decided that Motion by the time of his death in December 2014

and the case had to be reassigned to another District Judge. Judge Spiegel did not involve any

Magistrate Judges in his capital cases, but all the other District Judges in the Western Division of

this Court have referred all of their capital habeas corpus cases to the undersigned since February

2011. That occasioned the reference from District Judge Barrett to the undersigned on January

22, 2015 (ECF No. 219).

When the case was transferred, there was also pending Petitioner's Motion to Discharge

his appointed counsel, S. Adele Shank, and appoint new counsel (ECF No. 215). The Magistrate

Judge denied that Motion on February 9, 2015, and explained the reasons for doing so (Decision

and Order, ECF No. 220). Henderson objected (ECF No. 227) and Judge Barrett overruled the

Objections (ECF No. 235). Prior to that Judge Barrett adopted the Report and Recommendations

which recommended denial of his prior Motion for Relief from Judgment (ECF No. 231). On

May 6, 2015, Henderson appealed from that order to the Sixth Circuit (ECF No. 239). The Sixth

Circuit denied a certificate of appealability. Henderson v. Robinson, Case No. 15-3490 (6th Cir.

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Jan. 8, 2016)(unreported; copy at ECF No. 242). The United States Supreme Court denied

Henderson's request for a writ of certiorari. Henderson v. Robinson, 137 S. Ct. 145 (Oct. 3,

2016)(copy at ECF No. 244). Henderson then filed the instant Motion (ECF No. 245).

Analysis

Henderson claims that he was not served a copy of the Report and Recommendations and

not given "explicit notice of the preclusion rule." (ECF No. 245, PagelD 862.) As the Magistrate

Judge held in denying Henderson's Motion for service of a copy of the Report and

Recommendations, Henderson was not entitled to have that document served on him personally

I

because he is represented in the case by Attorney S. Adele Shank (Notation Order denying ECF

No. 230). Several other motions filed by Henderson pro se were stricken on the same basis (See

Notation Orders striking ECF Nos. 232, 233, 234).

Henderson argues at some length the scope of his right as a capital defendant to

representation under 28 U.S.C. § 3599 (ECF No. 245, PagelD 864-69). Then he argues the

merits of his potential motion for new trial. Id. at PagelD 869-71.

Henderson is not entitled to relief from judgment for the following reasons:

First of all, his claims seem to be based on an implicit assertion that his rights under §

3599 extend to forcing his attorney to file whatever motions he wants filed in his case or being

replaced by a new attorney who will do his bidding. That is simply not the law. As the

Magistrate Judge explained more fully earlier in the case, an attorney has an ethical obligation to

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the Court not to file frivolous motions. Because Henderson's desire to replace Ms. Shank was

based on her unwillingness to file an improper motion, the Magistrate Judge denied that request

(ECF No. 220).

Second, Henderson's claim of "irregularities or procedural defects" in denying his prior

Motion is based on his implicit assertion that a represented litigant has a right to be personally

served with documents in a case even though the same document has been served on his

attorney. That is also not the law. There is no constitutional right to hybrid representation, with

a defendant representing himself and also having counsel. McKaskle v. Wiggins, 465 U.S. 168

(1984). Nor is there any rule-based right to such service. Fed. R. Civ. P. 5 provides that "If a

party is represented by an attorney, service under this rule must be made on the attorney unless

the court orders service on the party."

Thus Henderson's Motion fails on the merits; he has not demonstrated any irregularity or

procedural defect in the Court's denial of his prior Motion. His instant Motion also fails on

procedural grounds. It is well established that Rule 60(b)(6) is not to be used as a substitute for

appeal. Polites v. United States, 364 U.S. 426 (1960); Ackermann v. United States, 340 U.S. 193

(1950). The issues he raises now were available to him on his appeal from the denial of his prior

Motion. Either' he failed to raise them and has thus forfeited them or he did raise them, they

were denied, and the denial is now the law of the case.

Besides Henderson's forfeiture for not raising these claims on direct appeal, he has also

filed his Motion in an untimely manner. Subsection (b)(6) is properly invoked only in "unusual

Henderson's brief on appeal is not before this Court and the Sixth Circuit's brief denial of a certificate of

appealability does not indicate what issues were raised.

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and extreme situations where principles of equity mandate relief." Frontier Ins. Co. v. Blaty, 454

F.3d 590, 597 (61h Cir. 2006) (internal quotation marks omitted). Motions seeking extraordinary

relief under this subsection must be brought within a reasonable time after judgment. Fed. R.

Civ. P. 60(c)(1); Thompson v. Bell, 580 F.3d 423, 442 (6th Cir. 2009). Henderson has waited

more than two years after judgment was entered to file his Motion which is plainly unreasonable.

Finally, although the Court has decided this Motion on the merits, Henderson is still not

entitled to file pro se swo long as he is represented by counsel.

Conclusion

Mr. Henderson's instant Rule 60(b)(6) Motion is without merit and procedurally barred.

It should be DENIED and the Court should certify to the Sixth Circuit that any appeal would not

be taken in good faith.

April 24, 2017.

s/ Mic&wCR lvterz

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. If the Report and

W

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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, 949-50 (6th Cir. 1981); Thomas v. Am, 474 U.S. 140, 153-55 (1985).