Alford v. Warden, Lebanon Correctional Institution

Filing 17

ORDER that respondent file a supplemental return of writ within 30 days; and that petitioner to reply to the writ within 20 das after the supplemental return of writ is filed. Signed by Magistrate Judge Stephanie K. Bowman on 9/25/12. (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

BRIAN KEITH ALFORD,
Petitioner,

vs.

WARDEN, LEBANON
CORRECTIONAL INSTITUTION,
Respondent.

Case No. 1:12-cv-862

Beckwith, J.
Bowman, M.J.

ORDER

On July 20, 2012, the undersigned issued a Report and Recommendation in this habeas
corpus action filed pursuant to 28 U.S.C. § 2241, recommending that the respondent’s motion to
dismiss be granted to the extent that the successive claim alleged in Ground One should be
transferred to the United States Court of Appeals for the Sixth Circuit and petitioner’s remaining
claims in Grounds Two and Three should be dismissed with prejudice “as plainly lacking in
merit.” (Doc. 12, p. 20). Petitioner filed objections to the Report and Recommendation (see
Doc. 15), and on September 24, 2012, the District Court remanded the matter to the undersigned
“for further review and issuance of a Supplemental Report and Recommendation” in order to
address an argument raised by petitioner in his objections, which neither respondent nor the
undersigned had an opportunity to consider. (Doc. 16). Specifically, the District Court pointed
out that in his objections, petitioner contended that in a recent parole eligibility hearing held on
July 20, 2012, the Ohio Parole Board violated the Constitution’s Ex Post Facto Clause by
applying amended parole guidelines enacted in 1998, years after he was convicted and
sentenced, to extend his incarceration for an additional 36 months. (See Doc. 16, p. 1).

The recent parole hearing occurred on the same date that the Report and
Recommendation was filed in this case. Therefore, respondent has not had an opportunity to
address petitioner’s new argument. Moreover, more information pertaining to the recent parole
hearing must be provided before the Court can properly assess the new argument that petitioner
has raised in his objections.
Accordingly, it is hereby ORDERED that respondent shall file a Supplemental Return of
Writ within thirty (30) days of the date of filing of this Order addressing petitioner’s claim that
the Ohio Parole Board improperly applied Ohio’s 1998 parole guidelines to him at a the recent
parole hearing held in July 2012. The Supplemental Return of Writ shall include as exhibits the
entire record from the state agency pertaining to that proceeding. It is FURTHER ORDERED
that petitioner shall file any reply to respondent’s Supplemental Return of Writ within twenty
(20) days after the Supplemental Return of Writ is filed with the Court.
IT IS SO ORDERED.

s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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