Finnell v. Warden, Lebanon Correctional Institution

Filing 196

DECISION AND ORDER DENYING EXTENSION OF STAY. Signed by Magistrate Judge Michael R. Merz on 1/10/2024. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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 EXTENSION OF STAY

This habeas corpus case, brought pro se by Petitioner Kyle Finnell, is before the Court to
decide whether to extend the stay of these proceedings until Petitioner has completed the
proceedings he presently has pending in the Ohio state courts.

History of the Stay Issue

A stay was initially put in place to allow completion of Finnell’s new trial proceedings in
the Hamilton County Court of Common Pleas, chiefly involving a post-trial Remmer1 hearing.
Those proceedings are now complete as the result of the decision of the Ohio First District Court
of Appeals in State v. Finnell, 2023-Ohio-2563 (Jul. 26, 2023), and the subsequent denial of review
by the Ohio Supreme Court, State v. Finnell, 171 Ohio St.3d 1511 (Nov. 7, 2023).

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Remmer v. United States, 347 U.S. 227 (1954).

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Advised that Petitioner had filed a new petition for post-conviction relief under Ohio
Revised Code § 2953.21 and a new application to reopen appeal under Ohio R. App. P. 26(B), the
Magistrate Judge asked the parties to state their positions on whether the stay should be continued.
Respondent unequivocally opposed a further extension because (1) the present petition is not a
mix of exhausted and unexhausted claims and (2) Respondent has not raised a lack of exhaustion
defense (ECF No. 178). Petitioner’s several lengthy responses were equivocal (ECF Nos. 176,
179). Having considered those responses, the Magistrate Judge vacated the stay on November 22,
2023 (ECF No. 181).
Between November 22, 2023, and December 6, 2023, Petitioner made four filings relating
to a stay (ECF Nos. 184, 185, 186, and 188) which are summarized at Decision and Order:
Additional Briefing on Stay (ECF No. 189, PageID 4899-4900). These also were, considered
together, equivocal on the question and thus the Magistrate Judge ordered further final briefing on
the issue. Id. Those briefs have now been filed (ECF Nos. 192, 195), making the issue again ripe.

Extension of the Stay is Denied

Respondent maintains the position that no further stay is warranted because the Petition is
not mixed and failure to exhaust has not been pleaded (ECF No. 192).
Petitioner’s response (labeled as Objections to Respondent’s Response) is eighty-four
pages long (ECF No. 195) and contains assorted arguments on a variety of issues, e.g., waiver of
defenses and the inapplicability of Fed.R.Civ.P. 59(e). Nevertheless, Petitioner answers the
question put quite succinctly: “Therefore, in this case at bar, petitioner prays this court not to stay
these proceedings. Petitioner pray [sic] this court for immediate action.” (ECF No. 195, PageID

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5064). Accordingly, the stay of these proceedings pursuant to Rhines v. Weber, 544 U.S. 269
(2005) will not be reinstated.

Status of the Case

The petition in this case is not a mix of exhausted and unexhausted claims. However,
Petitioner’s jury misconduct claim, which has been exhausted, is not yet a part of the petition. On
October 25, 2023, the Magistrate Judge vacated his prior Decision and Order denying Petitioner’s
Motion to Amend and agreed to reconsider that decision once the issue of a stay was settled (ECF
No. 171). That is the next matter for the Court’s consideration. No further briefing on this issue
is required or permitted without prior court authorization.

January 10, 2024.
s/ Michael R. Merz
United States Magistrate Judge

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