Finnell v. Warden, Lebanon Correctional Institution

Filing 42

DECISION AND ORDER DENYING RELEASE ON PERSONAL OWN RECOGNIZANCE BOND- The Magistrate Judge accepts as true Finnells claim that as a prisoner in the Ohio prison system, he is at a higher risk of infection during the pandemic that members of the genera l population. But that does not set him apart from everyone else who is incarcerated; he does not provide any facts indicating he is at a higher risk of infection or serious consequences from infection than other prisoners. Nor has Finnell shown that his right to relief in this case is clear. Accordingly, the Motion is DENIED. re 41 Signed by Magistrate Judge Michael R. Merz on 5/1/2020. (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.

DECISION AND ORDER DENYING RELEASE ON PERSONAL OWN
RECOGNIZANCE BOND

This habeas corpus case is before the Court on Petitioner’s Motion for Release on a
personal own recognizance bond (ECF No. 41). The Motion relies largely on the existence of the
current COVID-19 pandemic and its likely impact on the imprisoned. However, Petitioner spends
many pages discussing the merits of his case as well.
Petitioner’s motion for new trial, as the Magistrate Judge understands it, remains pending
in the Common Pleas Court of Hamilton County with a next occurrence date in June 2020,
according to Petitioner.
A district court has authority to enlarge a state prisoner pending determination of his or her
petition for writ of habeas corpus under 28 U.S.C. § 2254. Aronson v. May, 85 S. Ct. 3, 13 L. Ed.
2d 6 (1964). However, it is appropriate to exercise that authority only upon a showing that a
petitioner's claim is both substantial and clear on the merits. Glynn v. Donnelly, 470 F.2d 95 (1st
Cir. 1972); Calley v. Callaway, 496 F.2d 701 (5th Cir. 1974).
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In order to receive bail pending a decision on the merits, prisoners
must be able to show not only a substantial claim of law based on
the facts surrounding the petition but also the existence of "some
circumstance making [the motion for bail] exceptional and
deserving of special treatment in the interests of justice." Aronson
v. May, 85 S.Ct. 3, 5, 13 L.Ed.2d 6, 9 (1964) (Douglas, J., in
chambers); see Martin v. Solem, 801 F.2d at 329-330; Iuteri v.
Nardoza, 662 F.2d at 161. There will be few occasions where a
prisoner will meet this standard.
Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990).
The Magistrate Judge accepts as true Finnell’s claim that as a prisoner in the Ohio prison
system, he is at a higher risk of infection during the pandemic that members of the general
population. But that does not set him apart from everyone else who is incarcerated; he does not
provide any facts indicating he is at a higher risk of infection or serious consequences from
infection than other prisoners.
Nor has Finnell shown that his right to relief in this case is “clear.”
Accordingly, the Motion is DENied.

May 1, 2020.
s/ Michael R. Merz
United States Magistrate Judge

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