Finnell v. Warden, Lebanon Correctional Institution

Filing 124

DECISION AND ORDER - The Report and Recommendations (ECF No. 58) and the Supplemental Report (ECF No. 68) are WITHDRAWN without prejudice to either party's position on the merits. Petitioner's deadline to file a motion to amend to add his juror misconduct claims is July 1, 2023. Petitioner's motion to extend his time to respond to Respondent's Response to the Show Cause Order (ECF No. 122) is DENIED. Signed by Magistrate Judge Michael R. Merz on 6/15/2023. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 1:17-cv-00268-DRC-MRM Doc #: 124 Filed: 06/15/23 Page: 1 of 4 PAGEID #: 3535

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
KYLE FINNELL,
Petitioner,

:

- vs -

Case No. 1:17-cv-268
District Judge Douglas R. Cole
Magistrate Judge Michael R. Merz

TIM SCHWEITZER, Warden,
Lebanon Correctional Institution,
:
Respondent.

DECISION AND ORDER

This habeas corpus case is before the Court on responses by the parties (ECF Nos. 118,
123) to the Court’s Order to Show Cause (ECF No. 114).
As a predicate to the Order to Show Cause, the Magistrate Judge found
This case was filed April 24, 2017. After the Magistrate Judge
reference was transferred to the undersigned, proceedings were
stayed for several years to permit the exhaustion of Finnell’s state
court remedies for asserted juror misconduct. Because the Remmer
hearing on the juror misconduct claim had been repeatedly
continued on motion of Finnell’s counsel, this Court held him
responsible for the delay and dissolved the stay (ECF No. 57).
Shortly thereafter the Magistrate Judge filed a Report and
Recommendations on the merits of the exhausted claims (ECF No.
58). Finnell has objected to both of those filings (ECF Nos. 65, 66)
and the District Court has not yet reviewed and resolved those
Objections.
(Order, ECF No. 114, PageID 3510).
The Order also found that, regardless of who was responsible for the delay, the Remmer
hearing has now been held, the motion for new trial denied, and Finnell’s appeal from that decision
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is ripe for decision in the Ohio First District Court of Appeals. Id. Given those circumstances, the
Magistrate Judge directed the parties to show cause why the following steps should not be taken
by this Court:
1. Vacate the Report and Recommendations on the unexhausted
claims (ECF No. 58);
2. Reinstate the stay of proceedings pending exhaustion of new trial
proceedings in the Ohio courts;
3. Set a deadline for Petitioner to move to amend by adding his juror
misconduct claim;
4. Requiring Respondent to supplement the State Court Record with
proceedings on the juror misconduct/new trial claim; and
5. Setting a deadline for Petitioner to file a reply.

Id. at PageID 3511.
Respondent objects to vacation of the pending Report and a reinstatement of the stay
because proceeding in that way would lead to piecemeal litigation and delay a ruling by District
Judge Cole on the Report (ECF No. 118). The Magistrate Judge disagrees. The Report has been
pending on objections for nearly two and one-half years. This means that Judge Cole has had to
report this case as pending more than three years and five motions/objections in the case as pending
more than six months as of March 31, 2023, in the required public report under the Civil Justice
Reform Act.

Presumably this is because he wishes to avoid litigating Petitioner’s claims

piecemeal. His deciding the objections regarding the Report at this point in time would not result
in a final judgment resolving all of Petitioner’s colorable claims. Of course, if he disagrees, he
will be free to dissolve a new stay and consider the Report as initially filed, if Respondent objects
to this Order. Accordingly, the Report and Recommendations (ECF No. 58) and the Supplemental
Report (ECF No. 68) are WITHDRAWN without prejudice to either party’s position on the merits.
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This renders moot Petitioner’s Objections (ECF No. 65).
Petitioner’s deadline to file a motion to amend to add his juror misconduct claims is July
1, 2023. Respondent will have the time allowed by S. D. Ohio Civ. R. 7.2 to respond to that motion
and Petitioner will have the fourteen days also provided by that rule to reply to any opposition
Respondent may file. Leave to file a motion to amend is NOT leave to amend and is subject to all
the usual rules related to such motions under 28 U.S.C. § 2242 and Fed.R.Civ.P. 15. Petitioner
shall tender with his motion to amend a complete copy of his proposed amended petition.
If the motion to amend is granted, it will render the amended petition mixed and occasion
reconsideration of staying the proceedings until Petitioner’s state court remedies on the juror
misconduct claim are exhausted per Rhines v. Weber, 544 U.S. 269 (2005).
If the motion to amend is granted, the Court will permit Respondent to file an amended
return and set a date for Petitioner to file a reply.
Petitioner moves to extend his time to respond to Respondent’s Response to the Show
Cause Order (ECF No. 122). That Motion is DENIED as Petitioner has independently filed his
own Response.
Petitioner suggests the appropriate authority for a stay is Clinton v. Cook, 2017 U.S. Dist.
LEXIS 99133 (S.D. Ohio 2017)(Kemp M.J.), rather than Rhines. The Court acknowledges the
logic and circumstances of Clinton would support a stay here, but declines to re-enter a stay until
and unless the petition becomes mixed. Petitioner should note, however, that
There is no such thing as "the law of the district." Even where the
facts of a prior district court case are, for all practical purposes, the
same as those presented to a different district court in the same
district, the prior "resolution of those claims does not bar
reconsideration by this Court of similar contentions. The doctrine of
stare decisis does not compel one district court judge to follow the
decision of another." State Farm Mutual Automobile Insurance Co.
v. Bates, 542 F. Supp. 807, 816 (N.D. Ga. 1982). Where a second
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judge believes that a different result may obtain, independent
analysis is appropriate. Id.
Threadgill v. Armstrong World Industries, Inc., 928 F.2d 1366, 1371 (3rd Cir. 1991). See also
Colby v. J.C. Penney Co., Inc., 811 F.2d 1119, 1124 (7th Cir. 1987) (district judges should not
treat decisions of other district judges as controlling unless doctrines of res judicata or collateral
estoppel apply); United States v. Article of Drugs Consisting of 203 Paper Bags, 818 F.2d 569,
572 (7th Cir. 1987) (single district court decision has little precedential effect and is not binding
on other district judges in the same district); Starbuck v. City and County of San Francisco, 556
F.2d 450, 457 n.13 (9th Cir. 1977 (same); Farley v. Farley, 481 F.2d 1009 (3rd Cir. 1973) (even a
three judge decision of the district court is not necessarily binding on any other district court); and
EEOC v. Pan American World Airways, 576 F. Supp. 1530, 1535 (S.D.N.Y. 1984) (district court
decision was not binding even on other district courts in the same district).
Petitioner comments that a stay will allow this Court to “develop a record.” While that is
true respecting supplementation of the State Court Record with state court filings in the new trial
proceedings, a stay will not overcome the bar of Cullen v. Pinholster, 563 U.S. 170 (2011). While
Petitioner quotes language on development of the record purportedly from § 2254(d), that language
was replaced by the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132,
110 Stat. 1214)(the "AEDPA").

June 15, 2023.
s/ Michael R. Merz
United States Magistrate Judge

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