Opinion
Case No. 3:98-cr-81 Case No. 3:13-cv-206
08-22-2013
UNITED STATES OF AMERICA, Plaintiff, v. KEITH DEWITT, SR., Defendant.
JUDGE WALTER H. RICE
DECISION AND ENTRY ADOPTING UNITED STATES MAGISTRATE
JUDGE'S REPORT AND RECOMMENDATIONS (DOC. #474) AND
SUPPLEMENTAL REPORT AND RECOMMENDATIONS (DOC. #478) IN
THEIR ENTIRETY; OVERRULING DEFENDANT'S OBJECTIONS
THERETO (DOCS. ##476, 479); DISMISSING WITHOUT PREJUDICE
DEFENDANT'S MOTION TO VACATE UNDER 28 U.S.C. § 2255
(DOC. #473); DENYING ANTICIPATED REQUEST FOR CERTIFICATE
OF APPEALABILITY AND MOTION FOR LEAVE TO APPEAL IN FORMA
PAUPERIS; TERMINATION ENTRY
Based on the reasoning and citations of authority set forth by United States Magistrate Judge Michael R. Merz, in his March 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 Motion 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).
The Magistrate 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 Magistrate Judge. Doc. #480.
The Court further notes that, on June 26, 2013, the Sixth Circuit Court of Appeals joined other circuits in deciding that Missouri v. Frye, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012), do not apply retroactively to cases on collateral review. See in re Liddell, --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 law' made retroactive to cases on collateral review by the Supreme Court. In re Graham, 714 F.3d, 1181, 1183 (10th Cir. 2013) (per curiam); Gallagher v. United States, 711 F.3d 315, 315-16 (2d Cir. 2013) (per curiam); Williams v. United States, 705 F.3d 293, 294 (8th Cir. 2013) (per curiam); Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir. 2012); In re King, 697 F ,3d 1189, 1189 (5th Cir. 2012) (per curiam); Hare v. United States, 688 F.3d 878, 879, 881 (7th Cir. 2012); In re Perez, 682 F.3d 930, 933-34 (11th Cir. 2012) (per curiam)).
For the reasons set forth by Magistrate Judge Merz, the Court DISMISSES Defendant's Third Motion to Vacate Under 28 U.S.C. § 2255 (Doc. #473) WITHOUT PREJUDICE to its refiling if Defendant receives permission from the Sixth Circuit as required by 28 U.S.C. § 2255(h)(2).
On August 14, 2013, Defendant filed a Notice of Appeal from this Court's August 5, 2013, Decision and Entry Ruling on Apprendi 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." Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). Because the issue on appeal does not overlap with the issues presented in Defendant's Motion to Vacate Under 28 U.S.C. § 2255, there is no jurisdictional barrier to adjudicating the § 2255 motion.
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.
_________________
WALTER H. RICE
UNITED STATES DISTRICT JUDGE