Thoma v. Warden, Pickaway Corr. Inst.
| Decision Date | 25 January 2021 |
| Docket Number | Case No. 1:20-cv-282 |
| Parties | BRIAN THOMA, Petitioner, v. WARDEN, Pickaway Correctional Institution, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
This is a habeas corpus case, brought by Petitioner Brian Thoma with the assistance of Attorney Jennifer Kinsley. Thomas seeks relief from his conviction in the Hamilton County Court of Common Pleas on eight counts of sexual battery and seven counts of gross sexual imposition1 with the victim being his fifteen-year-old adopted daughter. He was sentenced to 336 months of imprisonment.
On October 28, 2020, the Magistrate Judge filed a Report and Recommendations recommending dismissal with prejudice and denial of a certificate of appealability ("Merits R&R,"ECF No. 20). On November 18, 2020, noting that no objections had been filed, District Judge Black adopted the Merits R&R and dismissed the case (ECF No. 21 & 22).
Twenty-eight days later on December 16, 2020, Petitioner filed the instant Motion captioned "Petitioner's . . . Motion to Alter or Amend and for Relief from Judgment" which has two branches. In the first branch he seeks to alter or amend the judgment under Fed.R.Civ.P. 59(e)2(ECF No. 23, PageID 1023-30). The Magistrate Judge separated this portion of the Motion for briefing purposes, allowing Respondent the twenty-one days to oppose the 59(e) branch which is provided by S. D. Ohio Civ. R. 7.2. Respondent filed a timely Response in Opposition on January 6, 2021 (ECF No. 26). Under the same Rule, Petitioner had until January 20, 2021, to file a reply memorandum in support, but has not done so. The Rule 59(e) branch of the Motion is therefore ripe for decision and is analyzed below.
In the second branch of the Motion, made pursuant to Fed.R.Civ.P. 60(b), Petitioner sought to vacate those portions of Judge Black's Order Adopting Report and Recommendations which (1) concluded Petitioner had not objected to the Merits R&R and (2) denied a certificate of appealability (Motion, ECF No. 23, PageID 1030-32).
Because the 60(b) branch claimed that the Court had only sent the Merits R&R to one of Attorney Kinsley's email addresses on file and that she had not seen it there until after judgment, the Magistrate Judge investigated the service of the Merits R&R at once. Had that investigation shown Attorney Kinsley's claim was accurate, the Magistrate Judge would have recommended reopening the whole judgment and allowing a new period for objections.
However, the investigation showed that the Merits R&R had been sent to and at both email addresses Attorney Kinsley has on file (See 60(b) R&R, ECF No. 24, PageID 1034-37). Theresearch also revealed that the CM/ECF system has done the same thing with all other filings in the case, i.e., sending them to both email addresses furnished by Attorney Kinsley.
As to the Certificate of Appealability portion of the Motion, the 60(b) R&R repeated the standard for granting a certificate and that the 60(b) portion of the Motion made no argument as to why there was error in denying a certificate (ECF No. 24, PageID 1037-38).
The 60(b) R&R was filed December 17, 2020. Attorney Kinsley objected the same day (ECF No. 25). Respondent has not replied to those Objections and the time for doing so expired December 31, 2020. Thus the Objections are ripe for consideration.
As noted above, Petitioner seeks to vacate those portions to the Court's Order adopting the Merits R&R which found he had not filed objections and which denied a certificate of appealability (Motion, ECF No. 23, PageID 1030-32). The 60(b) R&R recommended denying this branch of the Motion because Attorney Kinsley's claim of incorrect service of the Merits R&R proved to be inaccurate (ECF No. 24, PageID 1034-37).
Petitioner objects that the asserted fact of receipt of notice of the Merits R&R in her email account at kinsleylawoffice@gmail.com is disproven by a "screen capture from the undersigned's iphone" which is reproduced at ECF No. 25, PageID 1041. On its face, the screen capture purports to show three Notices of Electronic Filing from this Court received by Attorney Kinsley on October 28, 2020, two in the Execution Protocol Case (Case No. 2:11-cv-1016) and one in this case; it also showsone in the Protocol Case apparently on October 29, 2020. The screen capture also shows it is displaying contents of all Attorney Kinsley's mailboxes.3
The docket in the Protocol Case shows that there were two filings in that case on October 28, 2020: an Order Vacating and Setting Deadlines (ECF No. 3365) and an Unopposed Motion for Extension of Time (ECF No. 3366). In that case Attorney Kinsley has given the Clerk only one email address: kinsleylawoffice@gmail.com. Thus her screen capture shows what one would expect with one email address: receipt of one notice for each of the two filings in the Protocol Case at this one email address.
The screen capture also shows the receipt of the relevant Notice of Electronic Filing (NEF) in this case. It does not, however, show us in what email account Attorney Kinsley received that NEF. She claims it was only sent to her gmail account. How then does she explain the NEF's from the Protocol Case which only has her office account address? Attorney Kinsley claims she only checks her gmail account sporadically and it has over 200,000 emails in it. Because Google sets a 15 mb limit on its free gmail accounts, it may be that she had exceeded the limit on one of her gmail accounts. In any event, the screen capture does not refute the finding in the 60(b) R&R that the CM/ECF system sent this NEF to both of Attorney Kinsley's accounts and it was received in both.
Attorney Kinsley claims that she received two identical emails in the Protocol Case on October 28, 2020. Although she has not reproduced those emails to prove the identity of their content, the CM/ECF system rebuts it. The email sent as a result of Judge Sargus's Order (ECF No. 3365) reads ORDER VACATING AND SETTING FILING DEADLINES. Signed by JudgeEdmund A. Sargus on 10/23/2020. (cmw). It was sent at 2:07 p.m. The email sent as a result of the Unopposed Motion (ECF No. 3366) reads Unopposed MOTION for Extension of Time to File New date requested 1/18/2021. Plaintiffs Andre Jackson, Timothy Hoffner, and James ONeal's Second Joint, Unopposed Motion to Extend the Time to Respond to the Warden's Objections by Plaintiffs Timothy Hoffner, Andre Jackson, James O'Neal. (Bohnert, Allen). It was sent at 8:47 p.m.
In sum, Petitioner has not shown his purported failure to receive notice of the Merits R&R is the fault of the Clerk or the CM/ECF system.
Conceding that the notice of the Merits R&R was sent to at least one of the email addresses she has on file and that she inadvertently did not respond, she avers that the is "extraordinarily sorry" and argues this failure is excusable neglect under Fed.R.Civ.P. 60(b)(1)(ECF No. 25, PageID 1042.)
Fed. R. Civ. P. 60(b) (1) provides "[o]n motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons (1) mistake, inadvertence, surprise, or excusable neglect." In order to be eligible for relief under 60(b)(1) the movant must demonstrate the following: (1) The existence of mistake, inadvertence, surprise, or excusable neglect. (2) That he has a meritorious claim or defense. Marshall v. Monroe & Sons, Inc., 615 F.2d 1156, 1160 (6th Cir. 1980), citing Ben Sager Chemicals International, Inc. v. E. Targosz & Co., 560 F.2d 805, 808 (7th Cir. 1977); Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir. 1970); Central Operating Company v. Utility Workers of America, 491 F.2d 245 (4th Cir. 1973). Determinations made pursuant to Fed. R. Civ. P. 60(b) are within the sound discretion of the court and will not be disturbed on appeal unless the court has abused its discretion. Yeschick v. Mineta, 675 F.3d 622, 628 (6th Cir. 2012); H. K. Porter Co.,Inc. v. Goodyear Tire and Rubber Co., 536 F.2d 1115, 1119 (6th Cir. 1976); Smith v. Kincaid, 249 F.2d 243, 245 (6th Cir. 1957). A determination of 'excusable neglect' does not turn solely on whether the client has done all that he reasonably could do to ensure compliance with a deadline; the performance of the client's attorney must also be taken into account. Allen v. Murph, 194 F.3d 722, 724 (6th Cir. 1999) (citing Pioneer v. Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 396-97 (1993).
Based on the authority cited in the Objections holding that attorney inadvertence to a filing deadline can constitute excusable neglect, the failure of Respondent to oppose such a finding, the lack of any prejudice to Respondent from such a finding, the current COVID 19 pandemic and its impact on daily and professional life, and with the understanding that neither the Clerk nor the CM/ECF system is responsible in any way, the Magistrate Judge now recommends that the Motion to Vacate be GRANTED to the extent that the arguments made in Petitioner's Rule 59(e) Motion be considered by the Court de novo (i.e. as if made in objections) rather than under the stricter Rule 59(e) standard. The prior Report and Recommendations on the 60(b) portion of the Motion (ECF No. 24) is WITHDRAWN.
The "Alter or Amend" portion of the pending Motion contends that the Merits R&R, which the Court adopted, "contains numerous key errors that undermine its reliability" (Motion, ECF No. 23, PageID 1023). Those asserted errors are here considered in turn and under the de novo standard of Fed.R.Civ.P. 72(b).
In his First...
To continue reading
Request your trial