Gillispie v. Warden, London Correctional Institution

Filing 91

ORDER DISCHARGING PETITIONER FROM BOND AND ORDERING RESPONDENT TO SHOW CAUSE. Accordingly, the Own Recognizance Bond is dissolved and Petitioner is dischargedfrom those conditions. The Respondent is accordingly ordered to show cause not later than November 19, 2012, why this Court should not dissolve its stay pending appeal and notify the Sixth Circuit Court of Appeals that the appeal is moot. Signed by Magistrate Judge Michael R Merz on 11/09/2012. (kf)

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.

ORDER DISCHARGING PETITIONER FROM BOND AND
ORDERING RESPONDENT TO SHOW CAUSE
This habeas corpus case is before the Court sua sponte on notice that the Ohio Supreme
Court has declined to exercise jurisdiction over a requested appeal from the Order of the Ohio
Second District Court of Appeals which vacated the judgment which was the subject of this case.
State v. Gillispie, ___ Ohio St. 3d ___, 2012-Ohio-5149, 2012 Ohio Lexis 2801 (2012), declining
jurisdiction over an appeal from State v. Gillispie, 2012-Ohio-1656, 2012 Ohio App. LEXIS 1453
(Ohio App. 2nd Dist. Apr. 13, 2012), as modified on reconsideration at 2012-Ohio-2942, 2012
Ohio App. LEXIS 2575 (Ohio App. 2nd Dist. Jun 28, 2012).
When this Court entered judgment, it stayed its judgment pending appeal and placed
Petitioner under restrictive bond conditions (Decision and Order, Doc. No. 73). After the Second
District Court of Appeals vacated the judgment in question, this Court reduced Petitioner’s bond to
an own recognizance bond on the same general conditions applied to criminal defendants in this
District and wrote
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When this Court granted Petitioner a conditional writ, it stayed that
judgment pending appeal and released Petitioner on a bond with
substantial conditions in recognition of the substantial interest the
State of Ohio had in the conviction it had obtained once and
re-obtained on a second trial.
However, that interest is
substantially decreased by the decision granting a new trial in State
v. Gillispie, No. 24456, 2012 Ohio 1656, 2012 Ohio App. LEXIS
1453 (Ohio App. 2nd Dist. Apr. 13, 2012). Unless the Ohio
Supreme Court reinstates that judgment of conviction, the State=s
interest in the judgment will be completely extinguished.
(Decision and Order, Doc. No. 88.) Because the Ohio Supreme Court has declined jurisdiction,
the State of Ohio no longer has any interest in the prior judgment of conviction which this Court
must protect. Accordingly, the Own Recognizance Bond is dissolved and Petitioner is discharged
from those conditions.
It further appears to this Court that the action of the Ohio Supreme Court renders both this
Court’s final judgment and the appeal from that judgment moot. The Respondent is accordingly
ordered to show cause not later than November 19, 2012, why this Court should not dissolve its
stay pending appeal and notify the Sixth Circuit Court of Appeals that the appeal is moot.
November 9, 2012.
s/ Michael R. Merz
United States Magistrate Judge

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