United States v. Dewitt

3:98-cr-00081 | S.D. Ohio | Aug 22, 2013

CaSe: 3:98-Cr-OOOSl-WHR-l\/lRl\/l DOC #Z 485 Filed: 08/22/13 Page: l Of 3 PAGE|D #Z 2347 lN THE UN|TED STATES DlSTRlCT COURT FOR THE SOUTHERN DlSTRlCT OF OH|O WESTERN DlVlSlON UN|TED STATES OF AlVlERlCA, Plaintiff, Case Nos. 3:98-cr-81, 3:‘|3-cv-206 v. KE|TH DEW|TT, SR., JUDGE WALTER H. RICE Defendant. DEClSlON AND ENTRY ADOPT|NG UN|TED STATES MAG|STRATE JUDGE’S REPORT AND RECOMMENDAT|ONS (DOC. #474) AND SUPPLE|V|ENTAL REPORT AND RECON||V|ENDAT|ONS (DOC. #478) lN THE|R ENT|RETY; OVERRUL|NG DEFENDANT'S OBJECT|ONS THERETO (DOCS. ##476, 479); DlSMlSSlNG WlTHOUT PREJUD|CE DEFENDANT'S lVlOTlON TO VACATE UNDER 28 U.S.C. § 2255 (DOC. #473); DENY|NG ANT|C|PATED REOUEST FOR CERT|F|CATE OF APPEALAB|L|TY AND MOTlON FOR LEAVE TO APPEAL /N FORMA PAUPER/S; TERM|NAT|ON ENTRY Based on the reasoning and citations of authority set forth by United States l\/lagistrate Judge l\/lichae| R. Merz, in his IVlarch 22, 2013, Report and Recommendations (Doc. #474), in his April 29, 2013, Supplemental Report and Recommendations (Doc. #478), and in his Decision and Order Denying lVlotion to File Late Objections (Doc. #480), as Well as upon a thorough de novo review of this Court’s file and the applicable laW, this Court ADOPTS said judicial filings in their entirety, and OVERRULES Defendant's Objections thereto (Docs. ##476, 479). CaSe: 3298-Cr-00081-WHR-l\/|Rl\/| DOC #Z 485 Filed: 08/22/13 Page: 2 Of 3 PAGE|D #Z 2348 The l\/lagistrate Judge properly denied Defendant leave to file late Objections to the Supplemental Report and Recommendations, Doc. #479. However, even if those Objections are considered, they must be overruled on the merits for the reasons set forth by the l\/lagistrate Judge. Doc. #480. The Court further notes that, on June 26, 2013, the Sixth Circuit Court of Appeals joined other circuits in deciding that M/'ssour/' v. Frye, 132 S. Ct. 1399" date_filed="2012-03-21" court="SCOTUS" case_name="Missouri v. Frye">132 S. Ct. 1399 (2012), and /_af/er v. Cooper, 132 S. Ct. 1376 (2012), do not apply retroactively to cases on collateral revieW. See /n re Lidde//, --F.3d--, 2013 WL 3752659, at *1 (6th Cir. 2013) (”as held by every other circuit to consider the issue, neither Frye nor Cooper created a ’neW rule of constitutional |aW' made retroactive to cases on collateral review by the Supreme Court. /n re Graham, 714 F.3d, 1181" date_filed="2013-04-23" court="10th Cir." case_name="In re: Graham">714 F.3d, 1181 , 1183 (10th Cir. 2013) (per curiam); Ga//agher v. United States, 711 F.3d 315" date_filed="2013-03-28" court="2d Cir." case_name="Gallagher v. United States">711 F.3d 315, 315-16 (2d Cir. 2013) (per curiam); W/'//iams v. United States, 705 F.3d 293" date_filed="2013-01-23" court="8th Cir." case_name="John Williams v. United States">705 F.3d 293, 294 (8th Cir. 2013) (per curiam); Buenrostro v. United States, 697 F.3d 1137" date_filed="2012-10-09" court="9th Cir." case_name="Jose Buenrostro v. United States">697 F.3d 1137, 1140 (9th Cir. 2012); /n re K/'ng, 697 F .3d 1189, 1189 (5th Cir. 2012) (per curiam); Hare v. United States, 688 F.3d 878" date_filed="2012-08-06" court="7th Cir." case_name="Wayne Hare v. United States">688 F.3d 878, 879, 881 (7th Cir. 2012); /n re Perez, 682 F.3d 930, 933-34 (11th Cir. 2012) (per curiam)). For the reasons set forth by l\/lagistrate Judge l\/lerz, the Court DlSMlSSES Defendant’s Third l\/lotion to Vacate Under 28 U.S.C. § 2255 (Doc. #473) CaSe: 3298-Cr-00081-WHR-l\/|Rl\/| DOC #Z 485 Filed: 08/22/13 Page: 3 Of 3 PAGE|D #Z 2349 W|THOUT PREJUD|CE to its refiling if Defendant receives permission from the Sixth Circuit as required by 28 U.S.C. § 2255(h)(2).1 Given that the Court’s decision herein Would not be debatable among reasonable jurists, and because any appeal from this Court’s decision Would be objectively frivolous, Defendant is denied a certificate of appealability and denied leave to appeal in forma pauperis. The captioned case is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton. j (-\` Date: August 22, 2013 *../2\,-:\{\ WALTER H. RlCE UN|TED STATES DlSTRlCT JUDGE 1 On August 14, 2013, Defendant filed a Notice of Appeal from this Court’s August 5, 2013, Decision and Entry Ruling on Apprend/' issue as Raised in Defendant’s January 15, 2013, Letter to Court. The filing of a Notice of Appeal generally divests the district court of jurisdiction, but only over ”those aspects of the case involved in the appeal." Gr/'ggs v. Provia'ent Consumer Disc. Co., 459 U.S. 56, 58 (1982). Because the issue on appeal does not overlap With the issues presented in Defendant’s l\/lotion to Vacate Under 28 U.S.C. § 2255, there is no jurisdictional barrier to adjudicating the § 2255 motion. 3