Hazel v. Warden, Chillicothe Correctional Institution
Filing
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ORDER for Answer - re 1 The Court sua sponte grants leave to proceed in forma pauperis. Motion to Waive Required Number of Copies - The Clerk is not authorized to make free copies of documents for litigants but is in fact required to charge $. 50 per page for such copies; Motion for Additional Pages - The Federal Rules of Appellate Procedure do not apply to filings in this United States District Court. Motion to Stay - is DENIED; The Clerk is ordered to serve the Petition on Respondent and the Attorney General of Ohio, c/o Assistant Attorney General M. Scott Criss, Section Coordinator, 150 E. Gay Street, 16th Floor, Columbus, Ohio 43215. Signed by Magistrate Judge Michael R Merz on 09/30/13. (pb1)(res)(AG)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MICHAEL HAZEL,
Petitioner,
:
- vs -
Case No. 3:13-cv-332
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz
WARDEN, Chillicothe
Correctional Institution,
:
Respondent.
ORDER
This is a habeas corpus case brought pro se by Petitioner Michael Hazel under 28 U.S.C.
§ 2254 to seek release from imprisonment in Respondent’s custody resulting from Hazel’s
conviction in the Clark County Common Pleas Court for domestic violence (Petition, Doc. No. 1,
PageID 1, ¶¶ 1, 5). The case has been referred to the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. '636(b) and the Dayton General Order of Assignment and
Reference.
Petitioner has neither paid the filing fee of $5.00 nor applied to proceed in forma
pauperis. Given his incarcerated status, the Court sua sponte grants him leave to proceed in
forma pauperis.
Procedural History
Hazel was convicted by a Clark County petit jury of two counts of domestic violence
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with additional findings of two prior convictions and that the victim was pregnant at the time of
the assaults. His conviction was affirmed on direct appeal. State v. Hazel, 2012 Ohio 835, 2012
Ohio App. LEXIS 727 (2nd Dist. Mar. 2, 2012), and the Ohio Supreme Court declined to take
jurisdiction of an appeal. State v. Hazel, 132 Ohio St. 3d 1535 (2012). The Clark County
Common Pleas Court’s denial of post-conviction relief has been affirmed on appeal. State v.
Hazel, 2013 Ohio 118, 2013 Ohio App. LEXIS 80 (2nd Dist. Jan. 18, 2013). The Ohio Supreme
Court declined to review that decision September 4, 2013. State v. Hazel, 2013 Ohio 3790, 2013
Ohio LEXIS 1998 (2013). The Ohio Supreme Court also denied a motion for delayed appeal.
State v. Hazel, 136 Ohio St. 3d 1403 (2013).
Attached Motions
Hazel attaches several motions to his Petition which are decided below.
1. Motion to Waive Required Number of Copies (Doc. No. 1-1, PageID 17-18).
Hazel moves to excuse him from the requirement of providing four copies of
“Appellant’s Principal Brief.” There is no such requirement in this Court. Hazel says he has
included a copy of his Appellant’s Principal Brief, but none was included with his filing. He
also requests that the Court order the Clerk to make and send him a time-stamped copy of that
document. The Clerk is not authorized to make free copies of documents for litigants but is in
fact required to charge $.50 per page for such copies. A litigant requiring a time-stamped copy
must send the copy to be time-stamped plus an envelope with sufficient postage to cover mailing
it back to him. As an alternative, Petitioner may wish to rely on the Notice of Electronic Filing
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which will be sent to him when any document is filed, showing title and time of filing.
2. Motion for Additional Pages (Doc. No. 1-2, PageID 19-20).
Hazel seeks to exceed the page limit provided in Fed. R. App. P. 28.1. The Federal Rules
of Appellate Procedure do not apply to filings in this United States District Court. The rules
applicable here are the Federal Rules of Civil Procedure, the Rules Governing § 2254 Cases, and
the Local Rules of the U.S. District Court for the Southern District of Ohio. Only the latter
includes a prima facie limit on brief size of twenty pages. Leave to exceed that limit may be
sought.
3. Motion to Stay (Doc. No. 1-3, PageID 21-22).
Hazel moves to stay these proceedings pursuant to Fed. R. App. P. 8(a) pending
exhaustion of his “Notice of Determination of the Second Appellate District Court’s Decision
and Entry Pertaining to the Two Certified Conflicts” that Hazel says he has filed with the Ohio
Supreme Court under Ohio S. Ct. Prac. R. 4.4(B)1. The Ohio Supreme Court’s docket2 in the
referenced case, 2013-0496, shows Hazel filed a Notice of Appeal in that case on March 25,
2013, and two Notices of Pending Motions to Certify Conflict. After the Second District decided
not to certify a conflict, Hazel notified the Ohio Supreme Court of that decision on June 20,
2013. On September 4, 2013, the Ohio Supreme Court declined jurisdiction. Thus there is no
pending matter before the Ohio Supreme Court to exhaust.
Accordingly, the Motion to Stay is DENIED.
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Ohio Supreme Court Rules of Practice were re-numbered January 1, 2013. Previous Rule 4.4 is, as of that date,
Rule 7.07.
2
Available on the web at www.supremecourt.ohio.gov.
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Order for Answer
Upon preliminary consideration pursuant to Rule 4 of the Rules Governing '2254 Cases,
the Court finds that it does not plainly appear from the face of the Petition and any exhibits
attached thereto that the Petitioner is not entitled to relief in this Court. Accordingly, it is hereby
ORDERED that Respondent shall, not later than November 15, 2013, file an answer conforming
to the requirements of Rule 5 of the Rules Governing '2254 Cases. Specifically, said answer
shall respond to each allegation made in the Petition, raise any affirmative defense relied on by
Respondent, and state whether, from Respondent's perspective, any claim in the Petition is
barred by a failure to exhaust state remedies, a procedural bar, non-retroactivity, or a statute of
limitations.
Before filing the answer, the Respondent shall file those portions of the state court record
needed to adjudicate this case, accompanied by an index of the documents in the record. When
the record is filed electronically, the Court’s CM/ECF filing system will affix a unique PageID
number to each page of the record, displayed in the upper right-hand corner of the page. All
papers filed in the case thereafter, by either party, including the answer and the exhibit index,
shall include record references to the PageID number. Prior to filing the state court record, the
Warden’s counsel shall ensure that any borders on parts of the record (typically, court reporter
transcripts) do not obscure the PageID number when the page is filed.
As required by Fed. R. Civ. P. 5, a complete copy of the answer and state court record
with the PageID numbers must be served on Petitioner at the time of filing.
Petitioner may, not later than twenty-one days after the answer is filed, file and serve a
reply to the answer.
The Clerk is ordered to serve the Petition on Respondent and the Attorney General of
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Ohio, c/o Assistant Attorney General M. Scott Criss, Section Coordinator, 150 E. Gay Street,
16th Floor, Columbus, Ohio 43215.
September 30, 2013.
s/ Michael R. Merz
United States Magistrate Judge
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