Finnell v. Warden, Lebanon Correctional Institution

Filing 218

DECISION AND ORDER DENYING MOTIONS FOR SECOND COPY OF STATE COURT RECORD AND APPOINTMENT OF COUNSEL 216 217 . Signed by Magistrate Judge Michael R. Merz on 3/11/2024. (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 MOTIONS FOR SECOND COPY
OF STATE COURT RECORD AND APPOINTMENT OF COUNSEL

This habeas corpus case is before the Court on Petitioner’s renewed Motion for a Second
Copy of the State Court Record (ECF No. 217). For reasons previously given, the State has no
obligation to furnish a second copy of the record, to wit, the State has satisfied the Court that it is
not responsible for any damage to the first copy of the record provided to Petitioner. The Motion
for a second copy is denied.
The case is also before the Court on Petitioner’s seventy-one page Application for
Appointment of Counsel (ECF No. 216). That Application is denied for three reasons.
First of all, in the seven-plus years the case has been pending, Petitioner has proven himself
fully capable of preparing complex legal arguments without the assistance of counsel, far more
than most incarcerated litigants.
Second, the case is one of the oldest habeas corpus cases pending in this Court and has
accumulated a record of almost six thousand pages. Appointing counsel at this stage would
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undoubtedly delay completion of the case.
Most importantly, the Court lacks funds to compensate appointed counsel. While the
Criminal Justice Act Plan permits appointment of counsel in non-capital habeas cases, Congress
has never provided sufficient funding to appoint counsel beyond those cases where appointment
is required by the Constitution. Counsel are entitled to be compensated and cannot be compelled
to appear in the absence of compensation. Mallard v. U.S. Dist. Court, S.D. Iowa, 490 U.S. 296
(1989).

March 11, 2024.
s/ Michael R. Merz
United States Magistrate Judge

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