Hendrix v. Warden, Lebanon Correctional Insititution

Filing 66

DECISION AND ORDER - Acknowledging Petitioner's need to re-type his traverse, his time for filing that document is extended to and including April 1, 2023. No further extensions of time to file a traverse will be granted. The Court declines to set deadlines for the other motions Petitioner proposes to file, but will consider Petitioners diligence or lack thereof in deciding any additional motions filed in the case. Signed by Magistrate Judge Michael R. Merz on 1/27/2023. (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
D’JANGO HENDRIX,
Petitioner,

:

- vs -

Case No. 1:17-cv-623
District Judge Douglas R. Cole
Magistrate Judge Michael R. Merz

WARDEN, Lebanon Correctional
Institution,
:
Respondent.

DECISION AND ORDER

This habeas corpus action is before the Court on Petitioner’s Emergency Motion for
Extension of Time and to Set Deadline for Filing of Motions filed January 26, 2023(ECF No. 65).
The Motion shows that Petitioner has seen the Magistrate Judge’s Report of January 25, 2023,
recommending denial of his Emergency Motion to enjoin his transfer to another institution, a
transfer now scheduled for January 27, 2023, because the snowfall catastrophe predicted by news
sources for January 25, 2023, did not happen.
What the Court did not know before but is told with the instant filing is that draft motions
stored on the computer server at Lebanon Correctional have been destroyed and would not have
been downloaded to a flash drive in any event because of “ODRC Policy and Security concerns.”
What those concerns are has not been explained. The Court accepts the destruction of those files
as a given. Petitioner will need time to re-type his traverse. Why it will take sixty days to do so
is also unexplained, but the institutional librarian, Mrs. P. Wood, supports Hendrix’s request.
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Respondent’s counsel is requested to verify the authenticity of her letter and signature, as it was
acquired on apparently very short notice.
This case was filed September 15, 2017, more than five years ago (ECF No. 1). Since then
Petitioner has been granted extensions of time to file his reply of ninety days (ECF No. 9), sixty
days (ECF No. 10), thirty-five days (ECF No. 11), forty-three days (ECF No. 13), fifty-five days
(ECF No. 26), fourteen days (ECF No. 29), thirty-eight days (ECF No. 30), forty-two days (ECF
No. 34), and forty-nine days (ECF No. 54). That is well more than a year’s worth of extensions to
file the traverse. Having had more than five years to litigate this case, Petitioner now asks for a
schedule for additional extensive motion practice.
Fifty years ago, Justice Harlan wrote eloquently on the important of finality in criminal
litigation:
More importantly, there are operative competing policies in this area
which I regard as substantial. It is, I believe, a matter of fundamental
import that there be a visible end to the litigable aspect of the
criminal process. Finality in the criminal law is an end which must
always be kept in plain view. See, e. g., Fay v. Noia, 372 U.S., at
445 (Clark, J., dissenting); Spencer v. Texas, 385 U.S. 554, 583
(1967) (Warren, C. J., concurring and dissenting). See also Bator,
Finality in Criminal Law and Federal Habeas Corpus for State
Prisoners, 76 Harv. L. Rev. 441 (1963); Friendly, Is Innocence
Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L.
Rev. 142, 146-151 (1970). As I have stated before, "Both the
individual criminal defendant and society have an interest in
insuring that there will at some point be the certainty that comes with
an end to litigation, and that attention will ultimately be focused not
on whether a conviction was free from error but rather on whether
the prisoner can be restored to a useful place in the community."
Sanders v. United States, 373 U.S., at 24-25 (HARLAN, J.,
dissenting). At some point, the criminal process, if it is to function
at all, must turn its attention from whether a man ought properly to
be incarcerated to how he is to be treated once convicted. If law,
criminal or otherwise, is worth having and enforcing, it must at some
time provide a definitive answer to the questions litigants present or
else it never provides an answer at all. Surely it is an unpleasant task
to strip a man of his freedom and subject him to institutional
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restraints. But this does not mean that in so doing, we should always
be halting or tentative. No one, not criminal defendants, not the
judicial system, not society as a whole is benefited by a judgment
providing a man shall tentatively go to jail today, but tomorrow and
every day thereafter his continued incarceration shall be subject to
fresh litigation on issues already resolved.
A rule of law that fails to take account of these finality interests
would do more than subvert the criminal process itself. It would also
seriously distort the very limited resources society has allocated to
the criminal process. While men languish in jail, not uncommonly
for over a year, awaiting a first trial on their guilt or innocence, it is
not easy to justify expending substantial quantities of the time and
energies of judges, prosecutors, and defense lawyers litigating the
validity under present law of criminal convictions that were
perfectly free from error when made final. See Friendly, supra, at
148-149. This drain on society's resources is compounded by the
fact that issuance of the habeas writ compels a State that wishes to
continue enforcing its laws against the successful petitioner to
relitigate facts buried in the remote past through presentation of
witnesses whose memories of the relevant events often have
dimmed. This very act of trying stale facts may well, ironically,
produce a second trial no more reliable as a matter of getting at the
truth than the first. See Amsterdam, Search, Seizure, and Section
2255: A Comment, 112 U. Pa. L. Rev. 378, 384 (1964).
Mackey v. United States, 401 U.S. 667, 690-91 (1971)(Harlan, concurring in the judgment in part).
Since he wrote, important work has been done on the fallibility of eyewitness testimony, even
when it is given within hours or days of observation. See Eyewitness Testimony by Elizabeth F.
Loftus. We have also become aware that memory is not like a video recording, but involves mental
reconstruction of events.
Because this Court takes seriously the State’s interest in the finality of criminal decisions,
it is obliged to insist on diligence by litigants. The public in general has an interest in the prompt
disposition of litigation, an interest expressed in judges’ obligation to publicly report civil cases
pending more than three years.
Acknowledging Petitioner’s need to re-type his traverse, his time for filing that document
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is extended to and including April 1, 2023. No further extensions of time to file a traverse will
be granted. Motions to extend time are non-dispositive pre-trial motions which Magistrate Judges
are empowered to decide with litigants retaining the right to object which parallels their right to
object to reports and recommendations on dispositive motions. Petitioner is aware of this right,
having exercised it the last time the undersigned denied in part a request for extension (ECF No.
60). Petitioner should be aware of the provisions of S. D. Ohio Civ. R. 72.3 which provides:
Effect of Magistrate Judge Ruling Pending Appeal to a District
Judge
When an objection is filed to a Magistrate Judge’s ruling on a noncase dispositive motion, the ruling remains in full force and effect
unless and until it is (1) stayed by the Magistrate Judge or a District
Judge, or (2) overruled by a District Judge.
The effect of this Rule is that a litigant cannot give himself or herself a “bootstrap” extension of
time by objecting to a denial of an extension.
The Court declines to set deadlines for the other motions Petitioner proposes to file, but
will consider Petitioner’s diligence or lack thereof in deciding any additional motions filed in the
case.

January 27, 2023.
s/ Michael R. Merz
United States Magistrate Judge

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