Finnell v. Warden, Lebanon Correctional Institution

Filing 39

DECISION AND ORDER- The Motion purports to be directed to void judgments, but does not identify what judgments Petitioner is referring to. There are no judgments yet in this case. If Petitioner is referring to allegedly void state court judgments, th at is a question for consideration on the merits of the Petition. Petitioner cites nineteenth century Supreme Court precedent on granting state prisoners relief from criminal judgments entered by courts without jurisdiction by habeas corpus or writ o f error. The writ of error has been abolished. Granting relief by writ of habeas corpus requires that the petitioner exhaust state court remedies or show that the remedy is futile. Petitioner has not yet done either. The Motion to Vacate Void Judgments is DENIED.. Signed by Magistrate Judge Michael R. Merz on 3/26/2020. re 38 (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.

DECISION AND ORDER

This habeas corpus case is before the Court on Petitioner’s “Motion to Vacate Void
Judgments (ECF No. 38).
The first sentence of the Motion indicates Petitioner is objecting to the Magistrate Judge’s
“Order Concerning Status of the Case” (ECF No. 37) filed March 6, 2020. The filing would more
appropriately have been captioned “Notice Concerning Status of the Case,” since it does not decide
any pending motion or order any party to take any action.
In the second paragraph, Petitioner asks if the Magistrate Judge has in fact denied his
request for a second free copy of the state court record. Yes, the Magistrate Judge did deny a
second free copy of the State Court Record on February 27, 2020 (ECF No. 35). In the same Order
the Magistrate Judge directed Respondent’s counsel to investigate whether Petitioner’s first free
copy of the record was in fact destroyed by corrections staff. The Magistrate Judge has not yet
received a report from Respondent’s counsel on that question. Given the current restrictions on
state employee work imposed by the Governor and Director of Health in response to the COVID1

19 pandemic, the Court directs that Respondent’s counsel respond to that question not later than
three weeks after being permitted to return to work in state offices.
Next “petitioner Prays that this court to wave [sic] any and all statute of limitations,
concerning time lines for reconsiderations. And or motions to vacate void judgments.” (ECF No.
38, PageID 1736). That request is beyond the authority of this Court to grant and is therefore
denied.
Petitioner proceeds with a long quotation from 28 U.S.C. § 2254(d). Id. at PageID 1737.
That version of the statute was replaced in 1996 with the Antiterrorism and Effective Death Penalty
Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA").
After argument about disqualification of judges, Petitioner asserts that he exhausted all
available state court remedies by filing for a writ of prohibition in the Ohio Supreme Court
unsuccessfully and by filing a civil rights case in this court against Judges Metz and Myers. The
Magistrate Judge has previously taken note of the dismissal of the prohibition case and confirms
Petitioner did file a case in this Court under 42 U.S.C. § 1983 raising these issues. Judge Barrett
dismissed the latter case with instructions to Petitioner to file a habeas corpus case, which he has
done.
Petitioner does not discuss the status of his motion for new trial in the Hamilton County
Court of Common Pleas. 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). This Court is not advised of what may have
happened in that proceeding. Petitioner has not shown why he should not be required to exhaust
that remedy and any appeal from an adverse ruling before this Court considers his claims on the
merits.

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The Motion purports to be directed to “void judgments,” but does not identify what
judgments Petitioner is referring to. There are no judgments yet in this case.

If Petitioner is

referring to allegedly void state court judgments, that is a question for consideration on the merits
of the Petition. Petitioner cites nineteenth century Supreme Court precedent on granting state
prisoners relief from criminal judgments entered by courts without jurisdiction by habeas corpus
or writ of error. The writ of error has been abolished. Granting relief by writ of habeas corpus
requires that the petitioner exhaust state court remedies or show that the remedy is futile. Petitioner
has not yet done either.
The Motion to Vacate Void Judgments is DENIED.

March 26, 2020.
s/ Michael R. Merz
United States Magistrate Judge

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