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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

DAVID E. KIDD,

Petitioner, : Case No. 3:18-cv-131

- vs - District Judge Thomas M. Rose

Magistrate Judge Michael R. Merz

TIM SHOOP, Warden,

 Chillicothe Correctional Institution

:

Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 6) to the 

Magistrate Judge’s Report and Recommendations recommending dismissal of the Petition (ECF 

No. 5). Judge Rose has recommitted the case to the Magistrate Judge pursuant to Fed. R. Civ. P.

72(b)(3) for reconsideration in light of the Objections (ECF No. 7).

The Report recounted the procedural history of the case and concluded habeas corpus relief 

was precluded by Kidd’s failure to appeal directly from his bargained-for guilty plea (ECF No. 5, 

PageID 84). Kidd raises no objection to the substance of the Report. Instead, he claims that “[t]he 

Magistrate had no authority to have issued the Report and Recommendation dated April 20, 2018.” 

(Objection, ECF No. 6, PageID 89). Thus he concludes that the “report and recommendation must 

be dismissed as contrary to Habeas Corpus Rule 4 and withdrawn.” Id. 

When a case is filed with the Clerk at the Dayton location of court, either originally or by 

transfer as this case was, the Clerk randomly assigns the case to one of the two District Judges 

resident at the Dayton location of court, either Judge Walter H. Rice or Judge Thomas M. Rose. 
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The Dayton location of court has a General Order, DAY 13-01, that provides that all civil cases, 

at the same time they are assigned to a District Judge, shall also be randomly assigned to one of 

the Dayton resident Magistrate Judges. The same General Order refers some cases by category to 

the Magistrate Judges; other civil cases may later be referred to a Magistrate Judge at the time of 

the preliminary pretrial conference. As to the scope of the reference, the General Order provides:

Pursuant to 28 U.S.C. §636(b), the following categories of cases 

filed at the Dayton location of court are referred by this Order to the 

United States Magistrate Judge to whom the case has been assigned 

who is authorized to perform in each such case any and all functions 

authorized for full-time United States Magistrate Judges by statute. 

In each such case the Magistrate Judge shall proceed in accordance 

with Fed. R. Civ. P. 72.

Id. at p. 3. The text of this Order is available on the Court’s website, www.ohsd.uscourts.gov. 

The Order then lists the categories of cases referred and provides for referral of “All cases 

collaterally attacking a criminal judgment, including without limitation those filed under 28 U.S.C. 

§§ 2241, 2254, or 2255. All such cases shall be assigned and are referred to Magistrate Judge 

Merz.” Id. at p. 4.

28 U.S.C. § 636(b)(1)(B) provides “a judge may also designate a magistrate judge to 

conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed 

findings of fact and recommendations for the disposition by a judge of the court . . . of applications 

for posttrial relief made by individuals convicted of criminal offenses . . . .”

Thus the District Judges at Dayton have by written order available to the general public 

referred all habeas corpus cases for recommended disposition. This includes dispositions under 

Rule 4 of the Rules Governing Habeas Corpus Cases. Habeas Rule 10 expressly provides that “[a] 

magistrate judge may perform the duties of a district judge under these rules, as authorized under 

28 U.S.C. § 636.”
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Conclusion

Because the Report was issued in complete compliance with applicable procedural law, 

Kidd’s Objections are without merit and should be OVERRULED.

May 3, 2018.

 s/ Michael R. Merz

 United States Magistrate Judge

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. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days 

because this Report is being served by mail. .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. 

If the Report and Recommendations are based in whole or in part upon matters occurring of record 

at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or 

such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless 

the assigned District Judge otherwise directs. 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. See United States v. Walters, 638 F.2d 

947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).