Bies v. Bagley

Filing 153

ORDER DISSOLVING STAY AND SETTING SCHEDULE - The stay pending completion of the state court proceedings is DISSOLVED. Because Petitioner is no longer under a sentence of death, he is no longer entitled to appointed counsel under 18 U.S.C. § 3599 . Mr. Porter has indicated the willingness of the Ohio Public Defender to continue its representation of Petitioner. Attorney S. Scott Haynes shall notify the Court not later than August 1, 2010, of whether he wishes to continue to be appointed couns el for Petitioner in this case. In light of the vacation of the capital sentence, Petitioner shall, not later than August 6, 2010, file a motion to amend the Petition to delete those claims relating to the sentencing phase of the case which have beco me moot by virtue of the state court decision or which Petitioner does not otherwise intend to pursue. Counsel believe that all discovery sought by Petitioner and agreed to by Respondent has been completed. Either party may file a motion for evidentiary hearing in this matter not later than September 1, 2010. If no such motion is filed, the Court will deem the case submitted for decision as of that date. Signed by Magistrate Judge Michael R Merz on 7/16/2010. (kpf1)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON
MICHAEL BIES, : Petitioner, : -vsMARGARET BAGLEY, Warden, : Respondent. Case No. 1:00-cv-682 Chief Judge Susan J. Dlott Magistrate Judge Michael R. Merz

ORDER DISSOLVING STAY AND SETTING SCHEDULE

This case came on for scheduling conference by telephone at 9:00 A.M. on Friday, July 16, 2010. Randall Porter represented Petitioner and Charles Wille represented Respondent.
Attached to the Joint Motion for Status Conference (Doc. No. 152) is the June 18, 2010, Decision of Hamilton County Common Pleas Judge Beth A. Myers finding Petitioner to be mentally retarded according to the standard adopted in Atkins v. Virginia, 536 U.S. 304 (2002), and State v. Lott, 97 Ohio St. 3d 303 (2002); vacating his death sentence; and re-sentencing him to life imprisonment with parole eligibility at thirty years. On behalf of Respondent and the State of Ohio, Mr. Wille confirmed that the State will not appeal that Decision and the judgment is accordingly final. Therefore the stay of these proceedings pending completion of the state court proceedings is DISSOLVED. Because Petitioner is no longer under a sentence of death, he is no longer entitled to appointed counsel under 18 U.S.C. § 3599. Mr. Porter has indicated the willingness of the Ohio Public Defender to continue its representation of Petitioner. Attorney S. Scott Haynes shall notify the Court not later than August 1, 2010, of whether he wishes to continue to be appointed counsel for Petitioner in this

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case. In light of the vacation of the capital sentence, Petitioner shall, not later than August 6, 2010, file a motion to amend the Petition to delete those claims relating to the sentencing phase of the case which have become moot by virtue of the state court decision or which Petitioner does not otherwise intend to pursue. Counsel believe that all discovery sought by Petitioner and agreed to by Respondent has been completed. Either party may file a motion for evidentiary hearing in this matter not later than September 1, 2010. If no such motion is filed, the Court will deem the case submitted for decision as of that date. July 16, 2010.

s/ Michael R. Merz United States Magistrate Judge

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