Gillispie v. Warden, London Correctional Institution

Filing 121

DECISION AND ORDER GRANTING MOTION TO TOLL TIME - It is hereby ORDERED that the time within which the State of Ohio must commence a re-trial of the Petitioner or dismiss the charges against him with prejudice is tolled from January 18, 2013, until the date on which the Common Pleas Court decides the pending motion to dismiss. Signed by Magistrate Judge Michael R Merz on 5/20/2013. (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 GRANTING MOTION TO TOLL TIME

This habeas corpus case is before the Court on Motion of the State of Ohio to Toll Time
(Doc. No. 117). Petitioner has responded (Doc. No. 119) and the State has filed a Reply (Doc.
No. 120).
Having previously announced an intention to do so, Gillispie filed a motion to dismiss the
case against him in the Common Pleas Court on January 18, 2013. On April 24, 2013, Common
Pleas Judge Steven K. Dankof, to whom the re-trial proceedings are assigned, entered an Order
Staying Proceedings which stayed the case in that court “pending the outcome of the appeal now
pending before the 6th Circuit in Gillispie v. Warden, Case No. 13-3088” and ordered “the parties
to immediately approach Magistrate Judge Merz for an agreed stay in the Federal Court pending
the 6th Circuit’s decision in the aforementioned appeal.” The parties were obviously unable to
agree on the terms of a stay and the instant Motion was filed.

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Procedural History

On December 15, 2011, this Court granted Gillispie a conditional writ of habeas corpus,
concluding that he had been denied his right to due process by being convicted at a trial at which
he was denied access to materials to which he was entitled under Brady v. Maryland, 373 U.S.
83 (1963). The Court ordered that he be released from custody “unless he is again convicted at a
trial commencing not later than July 1, 2012.” (Decision and Order, Doc. No. 63, PageID 4551.)
The State appealed the next day (Doc. No. 65). The Court released Gillispie on bond and stayed
its decision pending appeal to the Sixth Circuit in that court’s Case No. 11-4417 (Doc. No. 73).
On the State’s motion to voluntarily dismiss that appeal, the Court of Appeals dismissed the case
on November 27, 2012, without any consideration of the merits (Order, Doc. No. 93). Upon
receiving notice of that Order, this Court dissolved the stay pending appeal on November 28,
2012 (Doc. No. 94).
Even before the stay was lifted, the State sought to have the conditional writ vacated on
the grounds it was moot and the Court no longer had authority to enforce it because the Ohio
Second District Court of Appeals had reversed Gillispie’s conviction (on different grounds than
this Court had found) and remanded the case for re-trial (Doc. No. 92). This Court denied the
Motion to Vacate on December 20, 2012 (Doc. No. 99). That decision is now on appeal to the
Sixth Circuit in its Case No. 13-3088 (Doc. No. 101). This Court has declined to stay its Rule
60(b) decision pending appeal (Doc. No. 106). On February 15, 2013, the State asked the Sixth
Circuit to stay the Rule 60(b) decision pending appeal, but the Sixth Circuit has not acted on that
request as of the date of this Order.
When the Court denied the State’s Rule 60(b) motion, it wrote:

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At the time the conditional writ was granted, the State had 196
days within which to retry and re-convict Gillispie. That order was
stayed on December 22, 2011, but the stay was dissolved
November 28, 2012. As of the date of this Order, the State has 167
days left in which to re-try and re-convict Gillispie or the writ can
be made unconditional.
Fn This time limit is obviously not inflexible. The Court has
authority to adjust it on good cause shown, as it did when granting
the stay pending appeal.

(Decision and Order, Doc. No. 99, PageID 4720.)
The parties are agreed that the time set in the Conditional Writ to commence a new trial
should be stayed pending the outcome of the pending appeal in the Sixth Circuit and such
additional time as Judge Dankof may require to decide the pending motion to dismiss.1
The parties are not agreed on the date from which the tolling should start. Petitioner
seeks a start date of April 24, 2013, the date of Judge Dankof’s stay order (Petitioner’s Response,
Doc. No. 119, PageID 4939). The State seeks a start date of December 24, 2012, the date it says
Gillispie announced his intention to move for dismissal, or January 18, 2013, the date the motion
was actually filed.
The parties’ argument about the start date seems to imply that the amount of time for retrial allowed by the Conditional Writ is fixed, as if it were embedded in a speedy trial statute.
That is not the case. This Court retains authority to adjust the time in the Conditional Writ as is
necessary to be in comity with the Common Pleas Court and to respect the needs of both parties
to prepare appropriately for trial.
That said, it is inappropriate to toll the time from the date of Petitioner’s announced

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The State represents and the Petitioner does not dispute that that motion is not ripe. Judge Dankof’s stay absolved
Petitioner from filing his reply memorandum in support until that stay is lifted.

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intention to move to dismiss, since many litigants announce intentions which are not enacted.2
Instead, the appropriate date is the date of filing, January 18, 2013.
Accordingly, it is hereby ORDERED that the time within which the State of Ohio must
commence a re-trial of the Petitioner or dismiss the charges against him with prejudice is tolled
from January 18, 2013, until the date on which the Common Pleas Court decides the pending
motion to dismiss.
May 20, 2013.
s/ Michael R. Merz
United States Magistrate Judge

Copy by email to The Honorable Steven K. Dankof

2

That is not a commentary on counsel in this case, but an assessment that generalizing a rule based on stated
intentions would not work in many cases.

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