Finnell v. Warden, Lebanon Correctional Institution

Filing 37

ORDER CONCERNING STATUS OF THE CASE- The pre-existing stay in this case in this case (ECF No. 19 ) remains in place as does the order for periodic status reports. It would be premature for this Court to decide the extent to which the dismissal of th e complaint in prohibition constitutes a decision on the merits of Petitioners jurisdictional issues until completion of the new trial proceedings and any appeal from any adverse decision by either party.. Signed by Magistrate Judge Michael R. Merz on 3/5/2020. (kma)(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 Michael R. Barrett
Magistrate Judge Michael R. Merz

TIM SCHWEITZER, Warden,
Lebanon Correctional Institution,
:
Respondent.

ORDER CONCERNING STATUS OF THE CASE

On February 13, 2020, Respondent filed a Status Report indicating this case was set before
Common Pleas Judge Ruehlman in the Hamilton County Court for a “plea or trial setting” on
March 5, 2020 (ECF No. 33).
In apparent response, Petitioner filed his “Prayer for the Record and Prayer to Left Stayed
in Abeyance to Address the Jurisdictional Issues” (ECF No. 34). The Court denied Petitioner’s
request for a second free copy of the record and denied without prejudice his request to continue
the stay pending the outcome of his proceedings in prohibition in the Supreme Court of Ohio (ECF
No. 35).
In his response to that Order, Finnell has advised this Court that the Supreme Court of Ohio
dismissed his complaint in prohibition on October 16, 2019 (Entry, ECF No. 36, PageID 1722).
In support of his claim that the First District Court of Appeals lacked jurisdiction, he attaches a
number of exhibits. Id. at PageID 1710-33. He notes that his motion for new trial remains pending

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in the Common Pleas Court and that a notice of appeal would be premature until that motion is
disposed of.
The pre-existing stay in this case in this case (ECF No. 19) remains in place as does the
order for periodic status reports. It would be premature for this Court to decide the extent to which
the dismissal of the complaint in prohibition constitutes a decision on the merits of Petitioner’s
jurisdictional issues until completion of the new trial proceedings and any appeal from any adverse
decision by either party.

March 5, 2020.
s/ Michael R. Merz
United States Magistrate Judge

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