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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION AT DAYTON 

UNITED STATES OF AMERICA, 

 Plaintiff, : Case No. 3:18-cr-023 

 

 District Judge Walter H. Rice 

- vs - Magistrate Judge Michael R. Merz 

JESUS MAYORGA GONZALEZ, 

 Defendant. : 

REPORT AND RECOMMENDATIONS 

 This case is before the Court on Defendant’s Motion to Correct a Clear Error of Law and 

to Prevent Manifest Injustice Pursuant [sic] to Fed.R.Civ.P. 59(e)(ECF No. 105). The Motion was 

filed July 20, 2021. It does not contain a certificate of deposit in the mail on an earlier date but 

the signature paged says “respectfully submitted” July 14, 2021. Incarcerated litigants are entitled 

to count as the date of filing the date on which they deposited a document in the prison filing 

system. Houston v. Lack, 487 U.S. 266 (1988); Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). 

The Court will treat the Motion as filed July 14, 2021. 

 Shortly after the Motion was filed, District Judge Rice, to whom the case is assigned, 

ordered the Clerk to refer the Motion to a Magistrate Judge (ECF No. 106). Although there have 

been a number of filings in the case since then, there is no further mention of Magistrate Judge 

involvement in the case until Judge Rice’s Entry Clarifying Referral of March 29, 2024 (ECF No. 

Case: 3:18-cr-00023-WHR-MRM Doc #: 114 Filed: 04/01/24 Page: 1 of 3 PAGEID #: 520
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113). The first the undersigned knew of the case and referral was upon reading an early morning 

March 30 computerized report of filings on March 29. Whatever the Clerk did in response to 

Judge Rice’s Order to refer the case, nothing was brought to the undersigned’s attention prior to 

the date of this Report. 

 Judge Rice’s Clarifying Entry makes clear that the referral is a for a report and 

recommendations. That is appropriate because a motion under Fed.R.Civ.P. 59 is made postjudgment and any such motions referred to a Magistrate Judge count as “dispositive,” requiring a 

recommendation rather than a decision. 

 Fed.R.Civ.P. 59(e) is a civil rule. Under Fed.R.Civ.P. 1, the Federal Rules of Civil 

Procedure govern procedure in “all civil actions and proceedings.” Because this is a criminal case 

and not a civil action, Fed.R.Civ.P. 59(e) is not applicable. The Motion should be denied on that 

basis. 

 Defendant Gonzalez is proceeding pro se in this case and is therefore entitled to a liberal 

construction of his pleadings. Haines v. Kerner, 404 U.S. 519 (1972); Urbina v. Thoms, 270 F.3d 

292, 295 (6th Cir. 2001). The Court could construe the Motion as made under the criminal rule 

analog to Fed.R.Civ.P. 59(e) which Fed. R. Crim. P. 34 on arresting judgment. 

 Whether the Motion is construed as made under Fed.R.Civ.P. 59(e) or Fed. R. Crim. P. 34, 

it is grossly untimely. Each of those Rules provides that a motion must be made within fourteen 

days of judgment. Judgment was entered in this case June 28, 2019 (ECF No. 82), more than two 

years before the Motion was filed. 

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Conclusion 

 Based on the foregoing analysis, the Magistrate Judge respectfully recommends the Motion 

be denied. Because reasonable jurists would not disagree with this conclusion, it is also 

recommended that Petitioner be denied a certificate of appealability and that the Court certify to 

the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to 

proceed in forma pauperis. 

March 30, 2024. 

NOTICE REGARDING OBJECTIONS 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the 

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Because this document is being served by mail, three days are added under 

Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. Such 

objections shall specify the portions of the Report objected to and shall be accompanied by a 

memorandum of law in support of the objections. A party may respond to another party’s 

objections within fourteen days after being served with a copy thereof. Failure to make objections 

in accordance with this procedure may forfeit rights on appeal. 

 s/ Michael R. Merz

 United States Magistrate Judge 

 

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