Gillispie v. Warden, London Correctional Institution

Filing 116

DECISION AND ORDER DENYING WITHOUT PREJUDICE PETITIONER'S MOTION TO AMEND THE CONDITIONAL WRIT AND THE RULE 60 ORDER AND MOTION TO EXPAND THE RECORD. Signed by Magistrate Judge Michael R Merz on 3/25/2013. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ROGER DEAN GILLISPIE,
:
Petitioner,

Case No. 3:09-cv-471
:

-vs-

Magistrate Judge Michael R. Merz

DEB TIMMERMAN-COOPER, Warden,
:
Respondent.

DECISION AND ORDER DENYING WITHOUT PREJUDICE
PETITIONER’S MOTION TO AMEND THE CONDITIONAL WRIT
AND THE RULE 60 ORDER AND MOTION TO EXPAND THE
RECORD

This habeas corpus case is before the Court on Petitioner Roger Dean Gillispie’s Rule
60(b) Motion to Amend the Conditional Writ and Rule 60 Order (Doc. No. 108) and Motion to
Expand the Record (Doc. No. 109). Respondent opposes both Motions (Doc. Nos. 112, 113) and
Petitioner has filed Reply Memoranda in Support (Doc. Nos. 114, 115).
In December, 2011, this Court entered judgment granting Petitioner a conditional writ of
habeas corpus, requiring the State of Ohio “to release Petitioner from custody unless he is again
convicted at a trial commencing not later than July 1, 2012.” (Doc. No. 63, PageID 4551). The
State appealed and this Court stayed its judgment pending appeal (Doc. Nos. 65, 73). Eventually
the State voluntarily dismissed that appeal (Doc. No. 93). In the meantime, the Ohio Second
District Court of Appeals also ordered Petitioner re-tried.
Petitioner’s case is now pending before Judge Dankof in the Common Pleas Court and is

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to be set for trial within the time allowed by the conditional writ. Petitioner seeks to avoid that
trial by having this Court’s judgment amended to “make the writ unconditional, bar
reprosecution, and require the State to expunge his record and take action to permanently remove
him from the sex offender registry.” (Doc. No. 108, PageID 4799).
Petitioner’s position in the Motion depends heavily on evidence adduced in the Common
Pleas Court once it reacquired jurisdiction on the existence vel non of the material this Court
found should have been disclosed to Petitioner under Brady v. Maryland, 373 U.S. 83 (1963).
Currently pending before Judge Dankof, as this Court understands it, is Petitioner’s Motion to
Compel Discovery, and if Required Discovery is Not Produced to Dismiss Indictment. Judge
Dankof has ordered briefing on that Motion complete by April 16, 2013 (Order of March 1,
2013, Case No. 1990 CR 02667, available at www.clerk.co.montgomery.oh.us/pro; visited
March 25, 2013.)
The Court has previously written on its understanding of its authority to make the writ
unconditional and/or provide other relief to Petitioner if he is not re-tried in compliance with the
conditional writ. While the Court continues to adhere to its previously-expressed views on this
point, the Court believes it is inappropriate to exercise that power at this point in time. Rather,
the Court will insist that Petitioner exhaust his state court remedy by way of his currently
pending motion before Judge Dankof.
A state prisoner seeking federal habeas corpus relief must first exhaust the remedies
available to him in the state courts. 28 U.S.C. §2254(b) and (c); Picard v. Connor, 404 U.S.
270, 275 (1971). The exhaustion doctrine is not jurisdictional. Ex parte Royall, 117 U.S. 241
(1886); Granberry v. Greer, 481 U.S. 129 (1987). However, in the absence of exceptional or
unusual circumstances, principles of comity and federalism require that unexhausted claims be

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decided in the first instance by the state courts even if the State does not raise the defense.
O'Guinn v. Dutton, 88 F.3d 1409 (6th Cir. 1996)(per curiam)(en banc). While Petitioner had
exhausted available state court remedies before initially filing his Petition in this Court, the same
principles of comity and federalism which underlie the exhaustion doctrine appear to be fully
applicable at this stage of the proceedings.
Accordingly, Petitioner’s Motion under Fed. R. Civ. P. 60(b) (Doc. No. 108) and his
Motion to Expand the record under Rule 7 of the Rules Governing § 2254 cases (Doc. No. 109)
are DENIED without prejudice to their renewal if Petitioner is denied relief in the Common
Pleas Court.
March 25, 2013.
s/ Michael R. Merz
United States Magistrate Judge

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