Finnell v. Warden, Lebanon Correctional Institution

Filing 235

DECISION AND ORDER DENYING PRAYER FOR ALL OF THE INVESTIGATIVE MATERIAL... AND OBJECTIONS TO RESPONDENTS MOTION BEFORE THE COMMON PLEAS COURT 234 . Signed by Magistrate Judge Michael R. Merz on 5/2/2024. (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 “PRAYER FOR ALL OF THE
INVESTIGATIVE MATERIAL . . . AND OBJECTIONS TO
RESPONDENTS MOTION BEFORE THE COMMON PLEAS
COURT”

This habeas corpus case, brought pro se by Petitioner Kyle Finnell pursuant to 28 U.S.C.
§ 2254, is before the Court upon the filing of Petitioner’s “Prayer for All of the Investigative
Material and Objections to Respondent[‘s] Motion Before the Common Pleas Court” (ECF No.
234).
It appears that Petitioner is seeking “investigative material” created by an investigator for
the Hamilton County Public Defender’s Office in connection with the Remmer hearing
proceedings in this case. Finnell refers twice to ECF No. 226, PageID 6149. The reference is to
the Supplemental Motion for New Trial with Evidentiary Hearing Requested (State Court Record,
ECF No. 226, Ex. 72). At that point in the Supplemental Motion, Mr. Bicknell, Finnell’s counsel,
avers that “Mr. Finnell is attaching as Defendant's Exhibit A the affidavit of his investigator who
interviewed the primary juror/witness at issue in this motion, and will file under seal all interviews

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conducted in response to this motion by the State and Defendant's investigators.” The attached
Affidavit of Dennis Ficker avers

5. I reviewed the interview transcripts from the jurors interviewed
by the Hamilton County Prosecutor's investigator.
6. I was able to locate a juror who was not interviewed by the
investigator from the Hamilton County Prosecutor's office and
interviewed them by telephone.
7. That juror reported that contact had taken place between Mr.
Finnell and the juror during the course of Mr. Finnell' s trial.
8. That juror reported that two incidents took place.
(Ficker Affidavit, State Court Record, ECF No. 226, PageID 6151).
Immediately after reporting the existence of the Ficker Affidavit, however, Finnell’s
counsel argues: “However, Mr. Finnell submits that while the interviews are helpful to the Court
in preparing for a possible hearing, they are not a substitute for the questions necessary to be taken
under oath in response to examination by counsels for the State and Defendant, and by the Court
itself.” Id. at PageID 6149.
The Magistrate Judge agrees with Mr. Bicknell. Reading the instant Motion as a request
to expand the record under Habeas Rule 7, the Magistrate Judge finds it is not well taken because
this Court must adjudicate this case on the basis of the record made before the Ohio courts. Cullen
v. Pinholster, 563 U.S. 170 (2011). In other words, whatever “investigative materials” Mr. Ficker
accumulated cannot be considered by this Court unless they were filed with the Common Pleas
Court. The language of Rule 7 permitting consideration of extra-record material is substantially
limited by Pinholster.
Petitioner also objects to the language of a motion he claims was filed May 1, 2024, in the
Hamilton County Common Pleas Court seeking unsealing of the Remmer hearing transcripts. The
undersigned has not seen a copy of that Motion and in any event has no authority to raise objections
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to it. Petitioner’s objection is that “To the contrary, Respondent has ducked further parts of the
record such as evidence derived from the instigator [sic] see. Doc. No. 226 Page ID 6149.”
[footnote omitted]. For the reasons given above, this Court may not consider any “investigative
materials” not considered by the state courts.
The instant Motion is DENIED.
May 2, 2024.

s/ Michael R. Merz
United States Magistrate Judge

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