Finnell v. Warden, Lebanon Correctional Institution
Filing
90
DECISION AND ORDER DENYING PETITION 89 . Signed by Magistrate Judge Michael R. Merz on 12/1/2021. (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 PETITION
This habeas corpus case, brought pro se by Petitioner Kyle Finnell, is before the Court on
Finnell’s “Petition to Challenge Subject Matter Jurisdiction”, filed November 30, 2021 (ECF No.
89). In general, Finnell seeks to obtain relief from his July 1, 2014, convictions in the Hamilton
County Court of Common Pleas in that court’s cases B-1305265-B and B-1306715 (Petition, ECF
No. 7, PageID 46).
The case is currently pending decision by District Judge Cole on Finnell’s Objections (ECF
Nos. 65 & 73) to the Magistrate Judge’s pending Reports and Recommendations recommending
dismissal of the case (ECF Nos. 58 & 68). It is also currently pending Judge Cole’s decision on
Finnell’s Objections to the Order Dissolving Stay (ECF No. 66) and to the Order Denying a
Renewal of the Stay (ECF No. 83).
Finnell’s Petition was filed in this Court April 24, 2017, but not docketed until June 22,
2017 (ECF No. 1). The Warden’s Return of Writ does not challenge the timeliness of the Petition,
so the Court will treat it as timely filed for purposes of the instant Petition.
1
In his instant Petition, Finnell seeks to adds a claim that the Hamilton County Court of
Common Pleas lacked subject matter jurisdiction to try him. While Finnell labels his filing a
“petition,” it is functionally a motion to amend: Finnell has not filed it as a new case1, but in his
existing habeas corpus case.
A habeas corpus petition may be amended by complying with the procedure for amendment
of a civil complaint. 28 U.S.C. § 2242. The general standard for considering a motion to amend
under Fed. R. Civ. P. 15(a) was enunciated by the United States Supreme Court in Foman v. Davis,
371 U.S. 178 (1962):
If the underlying facts or circumstances relied upon by a plaintiff
may be a proper subject of relief, he ought to be afforded an
opportunity to test his claim on the merits. In the absence of any
apparent or declared reason -- such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of any allowance of the amendment,
futility of amendment, etc. -- the leave sought should, as the rules
require, be "freely given."
371 U.S. at 182.
See also Fisher v. Roberts, 125 F.3d 974, 977 (6th Cir. 1997)(citing Foman
standard).
In considering whether to grant motions to amend under Rule 15, a court should consider
whether the amendment would be futile, i.e., if it could withstand a motion to dismiss under Rule
12(b)(6). Hoover v. Langston Equip. Assocs., 958 F.2d 742, 745 (6th Cir. 1992); Martin v.
Associated Truck Lines, Inc., 801 F.2d 246, 248 (6th Cir. 1986); Marx v. Centran Corp., 747 F.2d
1536 (6th Cir. 1984); Communications Systems, Inc., v. City of Danville, 880 F.2d 887 (6th Cir.
1989); Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 155 (6th
1
Cir. 1983);
If Finnell intended this to be a new case, this Court would not have jurisdiction to consider it without prior
authorization from the Sixth Circuit under 28 U.S.C. § 2244(b) because it would be a second or successive petition.
Burton v. Stewart, 549 U.S. 147 (2007); Franklin v. Jenkins, 839 F.3d 465(6th Cir. 2016).
2
Neighborhood Development Corp. v. Advisory Council, 632 F.2d 21, 23 (6th Cir. 1980); United
States ex rel. Antoon v. Cleveland Clinic Found., 978 F. Supp. 2d 880, 887 (S.D. Ohio 2013)(Rose,
J.); William F. Shea, LLC v. Bonutti Reseach Inc., 2011 U.S. Dist. LEXIS 39794, *28 (S.D. Ohio
March 31, 2011) (Frost, J.).
Likewise, a motion to amend may be denied if it is brought after undue delay or with
dilatory motive. Foman v. Davis, 371 U.S. 178 (1962); Prather v. Dayton Power & Light Co.,
918 F.2d 1255, 1259 (6th Cir. 1990); Bach v. Drerup, 2012 U.S. Dist. LEXIS 35574, *1 (Ovington,
M.J.); Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995), cert denied, 517 U.S. 112
(1996)(amendment should be denied if it “is brought in bad faith, for dilatory purposes, results in
undue delay or prejudice to the opposing party, or would be futile.”). In Brooks v. Celeste, 39 F.3d
125 (6th Cir. 1994), the court repeated and explicated the Foman factors, noting that “[d]elay by
itself is not a sufficient reason to deny a motion to amend. Notice and substantial prejudice to the
opposing party are critical factors in determining whether an amendment should be granted. Id. at
130, quoting Head v. Jellico Housing Authority, 870 F.2d 1117, 1123 (6th Cir. 1989). These
considerations apply as well in capital habeas corpus cases. Coe v. Bell, 161 F.3d 320, 341 (6th
Cir. 1998), quoting Brooks. Denial of a motion for leave to amend the complaint generally is
reviewed for abuse of discretion, but denial on the basis of futility is reviewed de novo. Evans v.
Pearson Enters., Inc., 434 F.3d 839, 853 (6th Cir. 2006).
A motion to amend under Fed. R. Civ. P. 15 is non-dispositive and thus within the
Magistrate Judge’s decisional authority. Monroe v. Houk, No. 2:07-cv-258, 2016 U.S. Dist.
LEXIS 38999 (S.D. Ohio, Mar. 23, 2016)(Sargus, C.J.); McKnight v. Bobby, 2017 U.S. Dist.
LEXIS 63861 (S.D. Ohio Apr. 27, 2017)(Dlott, D.J.); Chinn v. Warden, 2020 U.S. Dist. LEXIS
94062 (S.D. Ohio May 29, 2020)(Morrison, D.J.).
3
Finnell’s requested amendment is futile because it is barred by the statute of limitations.
28 U.S.C. § 2244(d) provides:
(1) A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run from the
latest of —
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period
of limitation under this subsection.
Finnell’s conviction obviously became final years ago and none of the other provisions of
§ 2244 apply. The pendency of this habeas corpus action does not toll the time under 28 U.S.C. §
2244(d)(2) because it is not a state application for collateral review. Duncan v. Walker, 533 U.S.
167 (2001).
Accordingly, Finnell’s Petition to add a claim that the Hamilton County Court of Common
Pleas lacked subject matter jurisdiction to try him is DENIED.
4
December 1, 2021.
s/ Michael R. Merz
United States Magistrate Judge
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