Bray v. Warden Lebanon Correctional Institution
Filing
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DECISION AND ORDER GRANTING EXTENSION OF TIME AND PROVIDING CLARIFICATION - Petitioner Micah Bray's Motion (Doc. No. 6) for Extension of Time to file objections to the pending Report and Recommendations (Doc. No. 4) is GRANTED and Petitioner's time to file objections is extended to and including December 11, 2012. Signed by Magistrate Judge Michael R Merz on 10/12/2012. (kpf1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MICAH BRAY,
:
Petitioner,
Case No. 3:12-cv-303
:
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz
-vsWARDEN, Lebanon Correctional
Institution,
:
Respondent.
DECISION AND ORDER GRANTING EXTENSION OF TIME AND
PROVIDING CLARIFICATION
This case is before the Court on Petitioner Micah Bray’s Motion (Doc. No. 6) for Extension
of Time to file objections to the pending Report and Recommendations (Doc. No. 4). The Motion
is GRANTED and Petitioner’s time to file objections is extended to and including December 11,
2012.
Petitioner also questions whether a report and recommendations is procedurally proper
under Habeas Rule 4 without any return of writ or traverse having been filed. Rule 4 provides:
If it plainly appears from the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court, the judge
must dismiss the petition and direct the clerk to notify the petitioner.
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The Amended Petition1 in this case advises the Court of where and when Petitioner was
convicted, the offenses of conviction, and much of the procedural history after conviction,
including the appellate courts which considered the case. It also includes Petitioner’s grounds for
relief and a section indicating how the Amended Petition has been timely filed, i.e., why it is not
barred by the statute of limitations. Petitioner pleads that all of his Grounds for Relief were raised
on direct appeal and he has not filed any other collateral attacks on the judgment besides his
Petition.
It is now the case in Ohio that virtually all opinions by the courts of appeals and all the
decisions of the Ohio Supreme Court are available to the public in multiple places on the Internet.
As indicated by the citation at page 3 of the Report, the opinion of the Second District Court of
Appeals in Mr. Bray’s case is available both on the website of the Ohio Supreme Court under the
citation 2011-Ohio-4660 and in the Ohio Appellate database maintained by Lexis-Nexis under the
citation 2011 Ohio App. LEXIS 3857. It may well be maintained in other online databases as
well, including probably that maintained by Westlaw. It is appropriate for a judge to take judicial
notice of public records. Public records and government documents, including those available
from reliable sources on the Internet, are subject to judicial notice. United States ex rel Dingle v.
BioPort Corp., 270 F. Supp. 2d 968, 972 (W.D. Mich. 2003).
As noted in the Report (Doc. No. 4, PageID 35), when a state court decides on the merits a
federal constitutional claim later presented to a federal habeas court, the federal court must defer to
1 Petitioner asserts that he has not filed an Amended Petition. The only difference between the initial Petition (Doc.
No. 1) and the Amended Petition (Doc. No. 3) is that the Amended Petition has been signed by Mr. Bray as he was
ordered to do (Order, Doc. No. 2). The Petition with the signature was docketed as “Amended Petition” for ease of
distinguishing it from the original.
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the state court decision unless that decision is contrary to or an objectively unreasonable
application of clearly established precedent of the United States Supreme Court. 28 U.S.C. §
2254(d)(1); Harrington v. Richter, 562 U.S. ___, 131 S. Ct. 770, 785 (2011); Brown v. Payton, 544
U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529
U.S. 362, 379 (2000). In a case such as this when a petitioner asserts his claims have been
decided on the merits by the state courts and the decision of those courts are readily available to the
habeas court, there is no need to obtain them by ordering the State to file an answer. The Court
can readily determine whether the state court decision is entitled to deference under 28 U.S.C. §
2254(d)(1). That is what has happened in this case.
One usual function of an answer is for the State to raise affirmative defenses such as the bar
of the statute of limitations, lack of exhaustion, or procedural default. In any habeas case where
such defenses are raised in the answer, the petitioner appropriately has an opportunity to respond
in the reply or traverse. But where no affirmative defenses have been raised, there is no occasion
for a traverse.
Rule 4 was cited because it provides the first step in consideration of a habeas petition on
the merits. Mr. Bray complains that, instead of dismissing the Petition, the Magistrate Judge gave
a detailed merit analysis, which, he suggests “would not be required if it ‘plainly’ appeared that
relief was not available.” ((Motion, Doc. No. 6, PageID 46.) However, a Magistrate Judge
cannot exercise the authority in Rule 4 to dismiss a petition himself or herself. Instead, he or she
must make a recommendation to the assigned District Judge who alone has authority under Article
III of the Constitution to enter a final judgment dismissing the Petition. Even if a result is plainly
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required, it may take an explanation of some length to show that. Certainly Petitioner is not
prejudiced by receiving a full explanation because that enables him to be thorough in his
objections.
Upon reconsideration based on the Motion, the Court finds again that this is an appropriate
case for adjudication under Habeas Rule 4.
October 12, 2012.
s/ Michael R. Merz
United States Magistrate Judge
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