Martin v. The State Of Ohio

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

HOWARD E. MARTIN, III,

Petitioner, :

v. Case No. 2:22-cv-4423

Judge Sarah D. Morrison

Magistrate Judge Karen L.

WARDEN, CHILLICOTHE Litkovitz

CORRECTIONAL : INSTITUTION,

Respondent.

ORDER On June 20, 2023, the Magistrate Judge issued a Report and Recommendation recommending the Court deny Petitioner Howard E. Martin, III’s “Motion for Judgment by Default.” (R&R, ECF No. 23; see ECF No. 21.) In her R&R, the Magistrate Judge explains that motions for default judgment are unavailable in federal habeas corpus cases where a respondent failed to file an answer. (R&R PageID 148) (collecting cases); see also Allen v. Perini, 424 F.2d 134, 138 (6th Cir. 1970). Mr. Martin timely filed an Objection. (ECF No. 24.) If a party objects to a report and recommendation within the allotted time, the Court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review, the Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). In his Objection, Mr. Martin argues about another case he filed, Case No. 1:23-cv-205, which was dismissed by this Court because the petition filed in it was duplicative to the operative petition filed in this case. Mr. Martin’s arguments are

therefore irrelevant to the R&R. The Court has analyzed the R&R and finds the Magistrate Judge’s reasoning sound. Even assuming entering a default and default judgment was appropriate in a habeas case where a respondent failed to file an answer (which it is not), Respondent has until July 10, 2023, to file an answer. (ECF Nos. 13, 19.) Thus, Mr. Martin’s Objection is OVERRULED and the R&R is ADOPTED and AFFIRMED. Mr. Martin’s Motion for Judgment by Default is DENIED.

IT IS SO ORDERED. /s/ Sarah D. Morrison SARAH D. MORRISON UNITED STATES DISTRICT JUDGE