United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge
matter is before the Court on a Recommended Disposition filed
by United States Magistrate Judge Edward B. Atkins. [R. 405.]
Mr. Pedro has filed a pro se motion for relief from
this Court's denial of his habeas petition pursuant to
Rule 60(b) as well as a pro se motion to file his
Rule 60(b) motion out of time. [R. 404; R. 403.] Consistent
with local practice, Judge Atkins reviewed the motions and
ultimately recommends that the Court deny Mr. Pedro's
Federal Rule of Civil Procedure 72(b)(2), a petitioner has
fourteen days after service to register any objections to the
Recommended Disposition or else waive his rights to appeal.
In order to receive de novo review by this Court,
any objection to the recommended disposition must be
specific. Mira v. Marshall, 806 F.2d 636, 637 (6th
Cir. 1986). A specific objection must “explain and cite
specific portions of the report which [defendant] deem[s]
problematic.” Robert v. Tesson, 507 F.3d 981,
994 (6th Cir. 2007) (internal quotations and citations
omitted). A general objection that fails to identify specific
factual or legal issues from the recommendation, however, is
not permitted, since it duplicates the Magistrate's
efforts and wastes judicial economy. Howard v. Sec'y
of Health & Human Servs., 932 F.2d 505, 509 (6th
Martin Pedro filed timely objections on March 6, 2018. [R.
406.] However, rather than identifying specific issues from
the Magistrate Judge's Recommendation, Mr. Pedro merely
restates his initial arguments. [Compare R. 406
with R. 404.] The Court acknowledges its duty to
review Mr. Pedro's filings under a more lenient standard
than the one applied to attorneys because he is proceeding
pro se. See Franklin v. Rose, 765 F.2d 82,
84-85 (6th Cir. 1985). However, even under this more lenient
construction, these objections are not sufficiently definite
to trigger the Court's obligation to conduct a de
novo review. See 28 U.S.C. § 636(b)(1)(c).
Never the less, the Court has reviewed the entire record,
including the pleadings, the parties' arguments, relevant
case law and statutory authority, as well as applicable
procedural rules. For the following reasons, Mr. Pedro's
objections will be OVERRULED.
Pedro was indicted on October 18, 2007, for the assault of
federal officers. [R. 1.] This indictment was twice
superseded [R. 96], and Mr. Pedro's case proceeded to
trial. [R. 191.] A jury found him guilty of aiding and
abetting the assault of a federal officer. [R. 199.] He was
sentenced before this Court on September 24, 2008, to 175
months, to be served consecutive to his previous state and
federal sentences. [R. 259; R. 262.]
October 8, 2008, Mr. Pedro filed a timely notice of appeal.
[R. 268.] The Sixth Circuit affirmed his conviction. [R.
291.] Almost exactly a year after the Sixth Circuit decision,
Mr. Pedro filed a motion to vacate pursuant to 28 U.S.C.
§ 2255. [R. 303.] This petition was ultimately dismissed
and a certificate of appealability was denied on September
30, 2015. [R. 356.] Subsequently, he filed a motion to amend
alter or vacate that judgment [R. 361] and a notice of appeal
[R. 364]. The Court granted his motion in part [R. 368], an
attorney was appointed [R. 372], and an evidentiary hearing
was held on August 15, 2016 [R. 391]. After taking the issues
under advisement, the Court denied all of Mr. Pedro's
pending motions, including his request for a certificate of
appealability. [R. 394.] Mr. Pedro then filed another appeal.
[R. 395.] The Sixth Circuit treated this appeal as a motion
for a certificate of appealability, denied that motion, and
dismissed Mr. Pedro's case. [R. 401.] He petitioned for
rehearing, which was also denied. [R. 402.]
months later, Mr. Pedro filed two motions: a “Motion
for Equitable Relief” requesting permission to file his
Rule 60(b) motion out of time [R. 403] and a “Motion
for Relief from Judgment or Order Pursuant to FRCP Rule
60(b)(1) and (4)” requesting relief from this
Court's denial of his § 2255 petition [R. 356; R.
357] and this Court's denial of his first Rule 60 motion
and request for certificate of appealability [R. 394]. [R.
403; R. 404.]
Atkins reviewed these motions and recommends denying both of
them. [R. 405.] A Rule 60(b)(1)-(3) motion must be made
“no more than a year after the entry of the judgment or
order or the date of the proceeding.” Fed. R. Civ. Pro.
60(c). Mr. Pedro challenges orders and judgments entered on
September 30, 2015, and September 21, 2016. [R. 356; R. 357;
R. 394.] He did not file his Rule 60(b) motion until February
8, 2018. [R. 404.] Relief he requests under Rule 60(b)(1) is
therefore, unfortunately, blocked by this limitation.
Pedro also requested relief under Rule 60(b)(4), claiming the
judgment is void. [R. 404.] Though not barred by the one-year
limitation, this claim must also have been made “within
a reasonable time.” Fed. R. Civ. Pro. 60(c). His motion
for leave to file addresses his delay in filing, citing to
injuries and complications from surgery. [R. 403.] Regardless
of whether his motion was filed within a reasonable time, as
Judge Atkins identifies, Mr. Pedro has not established why
the judgment is void, but instead has attempted, again, to
litigate his § 2255 petition. [R. 405.] As this Court
has already denied Mr. Pedro's first petition, the Court
has no jurisdiction to hear successive petitions. 28 U.S.C.
§ 2244(b)(3). Instead, this Court must transfer Mr.
Pedro's petition to the Sixth Circuit pursuant to 28
U.S.C. § 1631. In re Sims, 111 F.3d 45, 47 (6th
reviewing de novo the entire record, as well as the
relevant case law and statutory authority, the Court agrees
with Judge Atkins's Recommendation. Mr. Pedro's
request for relief must be construed as a subsequent §
2255 petition. Accordingly, and the Court being otherwise
sufficiently advised, it is hereby ORDERED
Defendant/Petitioner Martin Pedro's Objections to the