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00-050 - USA v. Tunstall


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00-050 - USA v. Tunstall
September 27, 2006
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REPORT AND RECOMMENDATIONS as to Donnie Donell Tunstall. It is RECOMMENDED THAT: 1. Petitioner Donnie Tunstall's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. SECTION 2255 (3:00CR00050, Doc. #42; 3:04CV00001, Doc. #42) be DENIED; 2. Because reasonable jurists would not disagree with the conclusions reached in this Report, Petitioner should be denied both leave to appeal in forma pauperis and any requested Certificate of Appealability; and 3. These cases be terminated on the docket of this Court. Objections to R&R due by 10/12/2006. Signed by Judge Sharon L Ovington on 9/27/06. (kopf1, )
October 17, 2006
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DECISION AND ENTRY ADOPTING REPORT AND RECOMMENDATIONS FILED ON SEPTEMBER 27,2006 47; DENYING PETITIOENR'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE 42; DENYING CERTIFICATE OF APPEALABILITY; AND TERMINATING THE CASE ON THE DOCKET OF THIS COURT . Signed by Judge Walter H Rice on 10/16/06. (ep1, )
March 8, 2017
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ORDER VACATING STAY; REPORT AND RECOMMENDATIONS as to Donnie Donell Tunstall - It is therefore respectfully recommended that Defendants § 2255 Motion (ECF No. 56) be dismissed with prejudice for failure to state a claim upon which relief can be granted under 28 U.S.C. § 2255. ( Objections to R&R due by 3/22/2017) Signed by Magistrate Judge Michael R. Merz on 3/8/17. (pb)
March 20, 2017
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SUPPLEMENTAL REPORT AND RECOMMENDATIONS as to Donnie Donell Tunstall - It is again respectfully recommended that the Defendant's § 2255 Motion (ECF No. 42) be DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal wouldbe objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 4/3/2017 Signed by Magistrate Judge Michael R. Merz on 3/20/2017. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
April 3, 2017
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SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS - It is again respectfully recommended that the Defendant's § 2255 Motion (ECF No. 42) be DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 4/17/2017. Signed by Magistrate Judge Michael R. Merz on 4/3/2017. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
May 9, 2017
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DECISION AND ORDER WITHDRAWING PRIOR REPORTS ANDRECOMMENDATIONS AND ORDERING THE GOVERNMENT TOANSWER - The prior Reports and Recommendations (ECF Nos. 63, 66, and 70) are WITHDRAWN and it is ORDERED that the United States file its answer to the Motion to Vacate not later than June 1, 2017. Signed by Magistrate Judge Michael R. Merz on 5/8/2017. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
June 16, 2017
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REPORT AND RECOMMENDATIONS as to Donnie Donell Tunstall - The Magistrate Judge respectfully recommends the instant § 2255 be GRANTED, that Tunstalls sentence be VACATED, and that he be resentenced without the Career Offender enhancement previously applied. Objections to R&R due by 6/30/2017. Signed by Magistrate Judge Michael R. Merz on 6/16/2017. (kpf)
July 28, 2017
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SUPPLEMENTAL REPORT AND RECOMMENDATIONS as to Donnie Donell Tunstall - Rather than congest the record with thirty more pages of writing, the Magistrate Judge will stand on the initial Report and allow the District Judge to decide if it is contrary to law as written. Objections to R&R due by 8/11/2017. Signed by Magistrate Judge Michael R. Merz on 7/28/2017. (kpf)
August 18, 2017
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RECOMMITTAL ORDER - This case is before the Court on Government's Objections (ECF No. 85) to theMagistrate Judge's Supplemental Report and Recommendations (ECF No. 84). The District Judge has preliminarily considered the Objections and believes they will be more appropriately resolved after further analysis by the Magistrate Judge. Accordingly, pursuant to Fed. R. Civ. P. 72(b)(3), this matter is hereby returned to the Magistrate Judge with instructions to file a second supplemental report analyzing the Objections and making recommendations based on that analysis as to Donnie Donell Tunstall. Signed by Judge Walter H. Rice on 8/18/17. (pb)
August 30, 2017
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WITHDRAWAL OF PRIOR REPORTS; SUBSTITUTED REPORT AND RECOMMENDATIONS - It is respectfully recommended that the instant § 2255 Motion to Vacate (ECF No. 42) be DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 9/13/2017. Signed by Magistrate Judge Michael R. Merz on 8/30/2017. (kpf)
November 28, 2017
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DECISION AND ENTRY ADOPTING IN PART AND REJECTING IN PART UNITED STATES MAGISTRATE JUDGE'S SUBSTITUTED REPORT AND RECOMMENDATIONS (DOC. #90); SUSTAINING IN PART AND OVERRULING IN PART PETITIONER'S OBJECTIONS THERETO (DOC.#91); DISMISSING WITH PREJUDICE MOTION TO VACATE SENTENCE PURSUANT TO 28 U.S.C. § 2255 (DOC. #56); DENYING CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS; JUDGMENT TO ENTER IN FAVOR OF RESPONDENT AND AGAINSTPETITIONER; TERMINATION ENTRY- Accordingly, although the holding in Raybon was based on§ 2255()(3), it applies equally to § 2255(h)(2). Given that Tunstall's second or successive motion is not based on "a new rule of constitutional law, made retroactive to cases on collateral review," 28 U.S.C. § 2255(h)(2), it must be dismissed on that basis. See 28 U.S.C. § 2244(b)(2)(A). Tunstall'sMotion to Vacate Sentence Pursuant to 28 U.S.C. § 2255, Doc. #56, is therefore DISMISSED WITH PREJUDICE. Judgment shall be entered in favor of Respondent and against Petitioner. Given that Petitioner has not made a substantial showing of the denial of a constitutional right and, further, 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, Petitioner is denied a certificate of appealability, and is denied leave to appeal informa pauperis. The captioned cases are hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton. Signed by Judge Walter H. Rice on 11/28/17. (kma) Civil Case 3:16-cv-00208-WHR-MRM closed.