Vore v. Warden Richland Correctional Institution

Filing 30

DECISION AND ORDER - Vore's proposed additional claim is not so obviously futile as to be frivolous. Accordingly, the Motion is GRANTED and the Petition is deemed amended to add the claim quoted above. Petitioner and Respondent have sufficiently argued the merits of this claim that no further briefing is needed. Signed by Magistrate Judge Michael R Merz on 10/30/2014. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
WILLIAM BERNARD VORE,
Petitioner,

:

- vs -

Case No. 1:13-cv-800
Chief Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

WARDEN, Richland Correctional Institution,
:
Respondent.

DECISION AND ORDER

This habeas corpus case under 28 U.S.C. § 2254 is before the Court on Petitioner’s
Motion for Leave of Court to Amend and Supplement Pending Petition for Writ of Habeas
Corpus (Doc. No. 22). Respondent opposes the Motion (Doc. No. 25) and Petitioner has filed a
Reply in support (Doc. No. 26). Vore seeks to add the following claim:
THE STATE TRIAL COURT ERRED WHEN IT
RESENTENCED THE PETITIONER TO FIVE YEARS IN
PRISON FOR VIOLATING R.C. 2911.02(A)(3), A THIRD
DEGREE
FELONY
WHEN
PETITIONER
WAS
RESENTENCED AFTER THE EFFECTIVE DATE OF H.B. 86,
AND
AT
THE
TIME
OF
THE
PETITIONER’S
RESENTENCING HEARING THE MAXIMUM PENALTY
WAS 36 MONTHS IN PRISON.
(Motion, Doc. No. 22, PageID 1395.)1

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When any document is filed with this Court, the Court’s electronic filing system affixes a unique Page
Identification Number in the upper right hand corner of every page. The attention of the parties is directed to this
Magistrate Judge’s Standing Order of May 8, 2014, which provides in pertinent part “All references to the record in
this Court must be to the filed document by title, docket number, and PageID reference. (E.g., Defendant’s Motion
to Dismiss, Doc. No. 27, PageID ___.) The large majority of cases before this Magistrate Judge are habeas corpus
cases with large state court records and correct citation to the record is critical to judicial economy. Therefore,

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28 U.S.C. § 2242 permits amendment of a habeas corpus petition “as provided in the
rules of procedure applicable to civil actions.” Fed. R. Civ. P. 15 permits second or later
amendments with court permission. The general standard for considering a motion to amend
under Fed. R. Civ. P. 15(a) was enunciated by the United States Supreme Court in Foman v.
Davis, 371 U.S. 178 (1962):
If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of
relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of
any apparent or declared reason -- such as undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of any allowance of the amendment, futility of
amendment, etc. -- the leave sought should, as the rules require, be “freely given.”
371 U.S. at 182.

In considering whether to grant motions to amend under Rule 15, a court

should consider whether the amendment would be futile, i.e., if it could withstand a motion to
dismiss under Rule 12(b)(6). Hoover v. Langston Equip. Assocs., 958 F.2d 742, 745 (6th Cir.
1992); Martin v. Associated Truck Lines, Inc., 801 F.2d 246, 248 (6th Cir. 1986); Marx v.
Centran Corp., 747 F.2d 1536 (6th

Cir. 1984); Communications Systems, Inc., v. City of

Danville, 880 F.2d 887 (6th Cir. 1989); Roth Steel Products v. Sharon Steel Corp., 705 F.2d
134, 155 (6th Cir. 1983); Neighborhood Development Corp. v. Advisory Council, 632 F.2d 21,
23 (6th Cir. 1980). Likewise, a motion to amend may be denied if it is brought after undue delay
or with dilatory motive. Foman v. Davis, 371 U.S. 178 (1962); Prather v. Dayton Power &
Light Co., 918 F.2d 1255, 1259 (6th Cir. 1990). The Sixth Circuit has expressly applied these
factors to habeas corpus cases. Coe v. Bell, 161 F.3d 320, 341-2 (6th Cir. 1998).
Respondent argues the amendment would be futile because the claim asserted is not
nonconforming filings will be stricken.

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cognizable in habeas corpus in that it does not state a claim for violation of the United States
Constitution (Response, Doc. No. 25, PageID 1809-11).
The Federal Rules of Civil Procedure favor deciding cases on their merits. Therefore,
unless an amendment will seriously complicate a case or delay its decision, this Court prefers to
allow amendments and decide the added claims on their merits directly, rather than through the
“back door” of deciding whether they are futile. Particularly when a case has been referred for
report and recommendations, this Magistrate Judge prefers to provide the District Judge with an
integrated report dealing with all grounds for relief and the certificate of appealability issue.
Vore’s proposed additional claim is not so obviously futile as to be frivolous.
Accordingly, the Motion is GRANTED and the Petition is deemed amended to add the claim
quoted above. Petitioner and Respondent have sufficiently argued the merits of this claim that
no further briefing is needed.
October 30, 2014.
s/ Michael R. Merz
United States Magistrate Judge

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