Smith v. Hurley

Full title: GREGORY SMITH, Petitioner v. PAT HURLEY, Warden, Respondent

Court: United States District Court, N.D. Ohio, Eastern Division

Date published: Sep 29, 2005

Case No. 1:04 CV 1393 (N.D. Ohio Sep. 29, 2005)

Opinion

Case No. 1:04 CV 1393.

September 29, 2005

ORDER GRANTING PETITIONER'S MOTION TO ALTER AND AMEND JUDGMENT, DENYING PETITIONER'S MOTION FOR A NEW TRIAL, GRANTING RESPONDENT'S MOTION TO PLACE CASE ON THE COURT'S ELECTRONIC CASE FILING SYSTEM AND ORDERING PETITIONER'S COUNSEL TO USE ELECTRONIC CASE FILING FORTHWITH AND HENCEFORTH

LESLEY WELLS, District Judge

On 26 November 2004, petitioner, Gregory Smith ("Mr. Smith"), through counsel Paul Mancino, Jr. ("Mr. Mancino") placed before the Court a motion for a new trial or to alter and amend judgment, pursuant to Fed.R.Civ.P. 52 and 59. (Docket # 19). Mr. Mancino avers that he did not receive a copy of Magistrate Judge Perelman's Report and Recommendation ("R R") issued on 18 October 2004, and consequently could not file timely objections. (Document # 19, Affidavit of Paul Mancino, Jr., ¶ 4). Having received no objections to the R R, the Court entered judgment dismissing the petition for writ of habeas corpus with prejudice on 16 November 2004. (Docket # 18).

Upon consideration of the matter, the Court denies the Petitioner's motion for a new trial, but will grant Mr. Smith's timely motion to alter or amend judgment, pursuant to Fed.R.Civ.P. 59(e). Mr. Smith must file any objections to Magistrate Judge Perelman's R R no later than 14 October 2005. Respondent will have until 28 October 2005 to file any response. Accordingly, the judgment entered by the Court on 16 November 2004 is hereby vacated.

In a closely related issue, Respondent filed a motion on 11 January 2005 to place this case on the electronic docket and compel electronic filing ("ECF") by Petitioner's attorney, Mr. Mancino, who theretofore had not been on the electronic docket.¹ (Docket # 20). Respondent attached a long list of more than fifty (50) filed habeas court cases in which Mr. Mancino had represented clients and referred to several cases in which Mr. Mancino averred that the Clerk's office had failed to serve him with a copy of a magistrate judge's R R.

1 On 28 January 2005, Magistrate Judge Patricia A. Hemann ordered Mr. Mancino to file electronically in case number 1:04 CV 2156, as a means of expediting notice in that matter.

The Clerk's office has informed the Court that Mr. Mancino has been placed on ECF effective 1 August 2005. Accordingly, and in the interest of judicial efficiency, Respondent's motion is granted. This case is placed on the electronic docket and Paul A. Mancino, Jr. is ordered to utilize ECF filing forthwith and henceforth.

IT IS SO ORDERED.