Finnell v. Warden, Lebanon Correctional Institution

Filing 154

DECISION AND ORDER DENYING PETITION 153 . Signed by Magistrate Judge Michael R. Merz on 9/5/2023. (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 #: 154 Filed: 09/05/23 Page: 1 of 2 PAGEID #: 4006

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 DENYING PETITION

This habeas corpus case, brought pro se by Petitioner Kyle Finnell, is before the Court
on Petitioner’s Petition to Answer a Federal Quest [sic] at Law Pursuant to 28 U.S.C. § 1331
(ECF No. 153). The Petition asks this Court to answer two questions of federal law: (1)
whether ineffective assistance of trial counsel constitutes a structural error such that no
showing of prejudice is necessary to prevail on an ineffective assistance of trial counsel claim
and (2) whether the questioning of jurors is per se prejudicial.
28 U.S.C. § 1331 gives the United States District Courts original subject matter jurisdiction
over cases which make claims that arise under federal law. The statute does not authorize federal
courts to answers questions posed by habeas corpus litigants except in the course of deciding those
cases. When and if the questions Petitioner poses become material to a final decision in this case,
the Court will answer them. But before that providing answers would be in the nature of providing
an advisory opinion which we may not do. Golden v. Zwickler, 394 U.S. 103, 108 (1969), quoting
Utd. Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 89 (1947) (parentheses in original)
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Case: 1:17-cv-00268-DRC-MRM Doc #: 154 Filed: 09/05/23 Page: 2 of 2 PAGEID #: 4007

(internal quotation marks omitted). “Article III of the U.S. Constitution empowers federal courts
to hear ‘Cases’ or ‘Controversies,’ nothing more. And ‘no justiciable “controversy”’ exists when
parties ... ask for an advisory opinion.” United States v. Asakevich, 810 F.3d 418, 420 (6th Cir.
2016).
The Petition is DENIED.

September 5, 2023.
s/ Michael R. Merz
United States Magistrate Judge

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