Finnell v. Warden, Lebanon Correctional Institution

Filing 213

DECISION AND ORDER - Petitioner's filing labeled Affirmative Defense Of Lack Of Subject Matter Jurisdiction (ECF No. 211) relating to a supposed affirmative defense is denied without prejudice to its renewal by way of a motion to amend. Signed by Magistrate Judge Michael R. Merz on 3/5/2024. (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

This habeas corpus case is before the Court on Petitioner’s sixty-nine paged filing labeled
“Affirmative Defense Of Lack Of Subject Matter Jurisdiction” (ECF No. 211). Upon a reading of
the document, it appears Petitioner is attempting to assert that the Hamilton County Court of
Common Pleas lost both subject matter jurisdiction and personal jurisdiction when it somehow
denied him effective assistance of counsel. Petitioner principally relies on Johnson v. Zerbst, 304
U.S. 458 (1938).
The claim of lack of jurisdiction is not included in the four grounds for relief pleaded in
the Petition (ECF No. 7). Only the juror misconduct claim has been added as Ground Five (ECF
No. 197).
Any additional claim must be added by amending the Petition. If Petitioner seeks to amend
the Petition by adding a claim that his conviction is void because the Common Pleas Court lacked
jurisdiction, he must satisfy the general standard for a motion to amend. In considering whether
to grant motions to amend under Rule 15, a court should consider whether the amendment would
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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); United States ex rel. Antoon v. Cleveland Clinic Found.,
978 F. Supp. 2d 880, 887 (S.D. Ohio 2013)(Rose, J.); William F. Shea, LLC v. Bonutti Reseach
Inc., 2011 U.S. Dist. LEXIS 39794, *28 (S.D. Ohio March 31, 2011) (Frost, J.).
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); Bach v. Drerup, 2012 U.S. Dist. LEXIS 35574, *1 (Ovington,
M.J.); Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995), cert denied, 517 U.S. 112
(1996)(amendment should be denied if it “is brought in bad faith, for dilatory purposes, results in
undue delay or prejudice to the opposing party, or would be futile”).
Any motion to amend to add a claim of lack of jurisdiction must show why such a claim is
not barred by the statute of limitations in 28 U.S.C. § 2244(d). The instant motion relating to a
supposed affirmative defense is denied without prejudice to its renewal by way of a motion to
amend.

March 5, 2024.
s/ Michael R. Merz
United States Magistrate Judge

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