Crank v. Bracy

Filing 22

Memorandum Opinion and Order For the reasons stated in the Order, the Court sustains the Objections and overrules the 19 Magistrate Judge's recommendation. Accordingly, the Petitioner's 13 Motion for Leave to Amend is granted. Petitioner's request to transfer his petition to another Magistrate Judge is denied (related document 20 ). Signed by Judge Dan Aaron Polster on 8/3/2017. (K,K)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CHESTER RAY CRANK,
Petitioner,
vs.
CHARMAINE BRACY,
Respondent.

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CASE NO. 5:16 CV 2001
JUDGE DAN AARON POLSTER
OPINION AND ORDER

This case is before the Court on the Report and Recommendation of Magistrate Judge
Kathleen B. Burke (“R&R”). (Doc #: 19.) The Magistrate Judge recommends that the Court
deny the Motion for Leave to Amend Petitioner’s Habeas Corpus Petition filed by Petitioner
Chester Ray Crank. (Id.) In the pending Motion, Crank seeks to amend his Petition to add two
claims that were finally exhausted five days after the Respondent filed the Return of Writ.
(Doc #: 13 (“Motion” or “Motion for Leave”).) The Magistrate Judge recommends that the
Court deny the Motion citing “undue delay” because Petitioner waited two months after the
claims were finally exhausted before filing his Motion for Leave. She also recommends that the
Court deny the Motion because amendment would be futile since the claims are speculative and
would be dismissed on the merits anyway.
This prompted Petitioner to file Objections noting that “there is no time requirement for
the amendment of the habeas petition, just that leave need be sought from the Court prior to
doing such” and that leave should be freely given when justice so requires. (Doc #: 20 (“Obj.”)
at 1-2.) Moreover, Petitioner noted the Magistrate Judge’s observation that Respondent would

not suffer prejudice because she would have had to file supplemental briefing even if he had
filed his Motion for Leave two months earlier.
The Court sustains the Objections and overrules the Magistrate Judge’s recommendation.
Petitioner reported early in this case that an appeal of the denial of his postconviction petition
was still pending in state court and asked the Magistrate Judge to stay the habeas proceedings
until his state court claims were exhausted. (Doc #: 6.) While the Petitioner should have filed
his Motion for Leave earlier, the Court does not find that two months constitutes “undue delay.”
The Magistrate Judge may ultimately be correct that the new claims should be dismissed on the
merits, but that recommendation should not be made until the claims are fully briefed.
Accordingly, the Motion for Leave to Amend is granted.
Petitioner also asks the Court to transfer his petition to another Magistrate Judge due to
bias. In support, he cites the fact that the Magistrate Judge issued an R&R before the deadline
for him to file a Traverse. (Obj. at 3.) This request is denied. The Magistrate Judge
acknowledged her error in an order dated July 19, 2017, vacated the R&R, and extended the
deadline for Petitioner to file a Traverse to August 7, 2017. (Doc #: 18.) Because the
Magistrate Judge corrected her error and extended the deadline for Petitioner to file a Traverse
absent prompting, there is no evidence that she is biased against Petitioner.
IT IS SO ORDERED.

/s/ Dan A. Polster August 3, 2017
Dan Aaron Polster
United States District Judge

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