Case Information
*1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON United States of America,
Plaintiff,
Case No. 3:07-cr-205 v. Judge Thomas M. Rose Edwin Arthur Avery,
Defendant. DECISION AND ENTRY ADOPTING REPORT AND RECOMMENDATIONS, (ECF 62) , OVERRULING PETITIONER S OBJECTIONS TO MAGISTRATE S REPORT AND RECOMMENDATIONS, (ECF 63), DENYING MOTION FOR RECONSIDERATION. (ECF 60) . THE INSTANT CASE REMAINS TERMINATED, HOWEVER, THE CLERK IS TO ISSUE A CERTIFICATE OF APPEALABILITY ON WHETHER A PERSON IN DEFENDANT'S POSITION IS ENTITLED TO THE BENEFIT OF THE DOUBT ABOUT WHETHER AN AMBIGUOUS PRIOR CONVICTION WAS OR WAS NOT UNDER A STATUTE THAT QUALIFIES UNDER ACCA AFTER JOHNSON .
On September 29, 2016, the Sixth Circuit granted Defendant Edwin Arthur Avery permission to file a second or successive motion challenging the determination of his sentence and transferred the case to this Court. In re: Edwin Arthur Avery , Case No. 16-3566 (6th Cir. Sept. 29, 2016)(unpublished; copy at ECF 47.) Avery’s Second Motion to Vacate was opened that same day. (ECF 48.)
On December 28, 2016, Magistrate Michael R. Merz filed a Report and Recommendations urging that Avery’s Second Motion to Vacate (ECF 48) be dismissed with prejudice and a *2 certificate of appealability be denied. (ECF 56.) On January 20, 2017, the Court adopted the Report and Recommendations, (ECF 57), and terminated the case on February 25, 2016. (3:16-cv-002.)
On February 13, 2017, Avery filed a Motion for Reconsideration, (ECF 60), asking the Court to revisit its decision that Avery’s second Motion to Vacate under 28 U.S.C. § 2255 be dismissed with prejudice. On March 1, 2017, Magistrate Judge Merz filed a Report and Recommendations on Motion to Amend the Judgment, (ECF 62), recommending that Avery’s Motion for Reconsideration, (ECF 60) be denied but that he be granted a certificate of appealability permitting him to proceed on appeal in forma pauperis on whether a person in Avery's position is entitled to the benefit of the doubt about whether an ambiguous prior conviction was under a statute that qualifies under ACCA after Johnson . (Id.) On March 17, 2017, Avery objected to this Report and Recommendation. (ECF 63.)
As required by 28 U.S.C. ' 636(b) and Federal Rule of Civil Procedure 72(b), the Court has made a de novo review of the record in this case, taking into consideration Defendant’s objections. Upon said review, the Court finds that Plaintiff s objections, (Docs. 63), to Report and Recommendations, (ECF. 62), are not well taken and they are hereby OVERRULED . Wherefore, the Court ADOPTS IN FULL the Magistrate Judge s Report and Recommendations. (ECF 62.) The Motion for Reconsideration, (ECF 60) is hereby DENIED . Because the resolution of Avery’s motion would be debatable among reasonable jurists, Avery is GRANTED A CERTIFICATE OF APPEALABILITY permitting him to proceed on appeal in forma pauperis on whether a person in Avery's position is entitled to the benefit of the doubt about whether an ambiguous prior conviction was under a statute that qualifies under ACCA after Johnson . The case remains CLOSED in all other respects.
DONE and ORDERED this Thursday, May 4, 2017.
s/Thomas M. Rose ________________________________ THOMAS M. ROSE UNITED STATES DISTRICT JUDGE 3