SUPPLEMENTAL REPORT AND RECOMMENDATIONS

MICHAEL R. MERZ, Magistrate Judge.

This case is before the Court on Defendant's Objections (ECF No. 78) to the Magistrate Judge's Report and Recommendations on the Motion for Reconsideration (ECF No. 77). Judge Rose has recommitted the case for reconsideration in light of the Objections (Recommittal Order, ECF No. 79).

Relief from Judgment

Although the Objections are directed specifically to the Report and Recommendations of October 18, 2016, Jordan requests de novo review of his § 2255 Motion. He also now characterizes his Motion for Reconsideration as a motion for relief from judgment under Fed. R. Civ. P. 60. In the body of the Motion, however, he requested that his Motion for Certificate of Appealability be considered as "objections to the Magistrate Judge's Supplemental Report and Recommendations filed on August 9, 2016"; Rule 60 is not mentioned anywhere in the Motion for Reconsideration (ECF No. 76, PageID 296).

Jordan is correct that if he had filed a motion for relief from judgment under Fed. R. Civ. P. 60(b), it would be within the one-year time limit set by Fed. R. Civ. P. 60(c). The Court is prepared to treat the present Objections as such a motion; there is no jurisdictional bar to doing so.

Federal R. Civ. P. 60(b)(1), on which Jordan relies, 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).

Jordan's counsel first emphasizes he acted in good faith and that this is his first § 2255 motion.

(Objections, ECF No. 78, PageID 310-11.) Both Fed. R. Civ. P. 72(b) and the actual text of the Notice at the end of the Supplemental Report and Recommendations remind the reader that objections must be filed within seventeen days of service. The deadline is not buried in some obscure statute or rule, but appears on the face of the Civil Rule dealing with Magistrate Judge reports and recommendations and is again referenced in the Notice appended to every report and recommendations filed by the undersigned. Jordan's counsel had actually filed Objections within the same time frame to the original Report and Recommendations (See ECF No. 69). The Supreme Court has held "[a]lthough inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute `excusable' neglect, it is clear that `excusable neglect' under Rule 6(b) is a somewhat `elastic concept' and is not limited strictly to omissions caused by circumstances beyond the control of the movant." Pioneer Inv. Services v. Brunswick Associates, 507 U.S. 380 (1993). The Sixth Circuit has held excusable neglect is a strict standard which is met only in extraordinary circumstances, Nicholson v. City of Warren, 467 F.3d 525 (6th Cir. 2006), citing Marsh v. Richardson, 873 F.2d 129, 130 (6th Cir. 1989). In Pioneer, the Supreme Court adopted the following standard for judging a claim of excusable neglect:

507 U.S. at 395. Although Jordan's counsel has not said how he made the mistake, the Court can hypothesize how it might have happened. Recommittal of matters for supplemental reports and recommendations, although common with this particular Magistrate Judge, is not a common practice in this Court with other Magistrate Judges. Counsel might mistakenly have believed that the Supplemental Report was just a supplement to the original Report and did not require additional objections. Although that is not the law, an attorney inexperienced with the practice might reasonably have assumed that was the correct way to proceed. Counsel did in fact timely file a Notice of Appeal, so there is no sense in which he had abandoned the case. The Magistrate Judge finds the failure to file objections to the Supplemental Report was excusable neglect.

With that finding made, the remaining findings required by Pioneer, supra, are relatively easy. The recommendation for dismissal of the § 2255 Motion was made on initial review without requiring an answer from the United States. The criminal judgment obtained by the United States in this case continues to be enforced by Mr. Jordan's continued incarceration.

Because the Defendant has appealed, this Court does not have jurisdiction to grant relief from its judgment. Filing a notice of appeal divests the District Court of jurisdiction over a case and vests jurisdiction in the Circuit Court of Appeals until the district court receives the mandate of the court of appeals. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373 (1985); Pickens v. Howes, 549 F.3d 377, 381 (6th Cir. 2008); Pittock v. Otis Elevator Co., 8 F.3d 325, 327 (6th Cir. 1993); Lewis v. Alexander, 987 F.2d 392, 394 (6th Cir. 1993); Cochran v. Birkel, 651 F.2d 1219, 1221 (6th Cir. 1981).

Fed. R. Civ. P. 62.1 provides:

It is accordingly respectfully recommended that the Court enter an order indicating that it would grant the motion for relief from judgment if the Sixth Circuit remanded the case for that purpose.