Finnell v. Warden, Lebanon Correctional Institution

Filing 207

DECISION AND ORDER DENYING MOTION TO ADD AFFIRMATIVE DEFENSE. Signed by Magistrate Judge Michael R. Merz on 2/20/2024. (srb)(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 MOTION TO ADD
AFFIRMATIVE DEFENSE

This habeas corpus case, brought pro se by Petitioner Kyle Finnell under 28 U.S.C. § 2254,
is before the Court on Petitioner’s Amended Prayer for Affirmative Defense (ECF No. 205).
An affirmative defense is a defense raised by a defending party stating reasons for denying
the relief sought by a plaintiff or petitioner. Fed.R.Civ.P. 8(c) lists the common affirmative
defenses, which are reasons why the court should deny relief. Common affirmative defenses in
habeas corpus cases. For example, are procedural default, failure to exhaust state court remedies,
failure to file within the statute of limitations, or filing a second or successive petition. By its very
definition, an affirmative defense is not something to be raised by a habeas petitioner.
Courts have a duty to liberally construe pro se pleadings. Haines v. Kerner, 404 U.S. 519
(1972); Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001). Having done so, the Magistrate Judge
believes that Petitioner may be attempting to raise some sort of equal protection claim. See, for
example, PageID 5253. If that is a correct construction of the Motion, Petitioner has failed to plead
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an equal protection claim in that he has not said in which way the State has treated him differently
from similarly situated persons. Construed as a motion to amend the Petition, the instant Motion
is DENIED for failure to state a claim upon which habeas corpus relief can be granted and also
because it is extremely untimely.
Finally, Finnell’s instant Motion interferes with the orderly development of this case for
decision. Although Finnell has never tendered an amended petition to include the claims exhausted
in his recently completed new trial proceedings, the Court has deemed the Petition amended to
include as Ground Five a claim that Finnell was denied a trial by a fair and impartial jury by
participation in deciding the case of three jurors who had contact with Finnell outside the
courtroom (Decision and Order on Reconsideration, ECF No. 197, PageID 5145-45). Based on
that implied amendment and exhaustion of that claim in the new trial proceedings before the
Common Pleas Court of Hamilton County, Ohio, the Magistrate Judge has ordered Respondent to
file an amended return of writ and State Court Record. Id. A date for Finnell to file an amended
reply was set in the same order. Finnell must include all of his arguments in support of Ground
Five in his amended reply; he is not entitled to have the Court decided his claims seriatim.
Petitioner’s Amended Prayer for Affirmative Defense (ECF No. 205) is DENIED.
February 20, 2024.
s/ Michael R. Merz
United States Magistrate Judge

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