Hazel v. Warden, Chillicothe Correctional Institution

Filing 38

DECISION AND ORDER OVERRULING PETITIONER'S OBJECTION TO RESPONDENT'S NOTICE OF FILING. Signed by Magistrate Judge Michael R Merz on 8/19/2014. (kpf1)

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.

DECISION AND ORDER OVERRULING PETITIONER’S
OBJECTION TO RESPONDENT’S NOTICE OF FILING

This habeas corpus case is before the Court on Petitioner’s Objection1 (Doc. No. 37) to
Respondent’s Notice of Filing (Doc. No. 33).
On July 31, 2014, on Petitioner’s Motion, the Court ordered Respondent to expand the
record, stating:
The other four items Hazel seeks in discovery are the bills of
particulars in Clark County Common Pleas Case Nos. 03-CR-592,
09-CR-212, 10-CR-808, and 11-CR-49 (Motion, Doc. No. 26,
PageID 2707). Rather than grant Hazel discovery of these items,
the Court finds that they are or may be relevant to a decision in this
case and therefore ORDERS the Respondent to expand the record
by filing copies of these four items not later than August 11, 2014.
(Decision and Order, Doc. No. 32, PageID 2770.)
In response, the Warden’s counsel wrote that no bills of particular were filed in Case

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The document is not an objection in the sense of a request for review by a District Judge of a Magistrate Judge’s
order or report under Fed. R. Civ. P. 72. Instead, it is a complaint about the failure, as Hazel sees it, of the Warden
to comply with a court order. As such, the Objection is properly dealt with by a Magistrate Judge.

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Nos. 03-CR-592, 09-CR-212, 10-CR-808, and 11-CR-49 (Response to Court’s Order, Doc. No.
34, PageID 2801-02). Docket sheets were attached to prove that no such bills of particulars had
been filed in those cases. Respondent noted that Case Nos. 10-CR-827 and 10-CR-828 had been
consolidated with 10-CR-808 and the four bills of particulars in the consolidated cases were
filed.
Hazel objects that the Respondent did not filed what the Court ordered and now should
be compelled to do so. Hazel misunderstands this Court’s authority. We have no power at this
juncture to order the State, and particularly the Clark County Prosecutor, to create documents
that never existed in the past. Ohio R. Crim. P. 7(E) provides for the prosecuting attorney to
furnish a defendant with a bill of particulars when a defendant makes a written request “within
twenty-one days after arraignment but not later than seven days before trial.” If no request was
made within that time, a defendant has forfeited his or her right to obtain a bill of particulars.
Respondent has provided definitive proof from the dockets that no bills of particulars meeting
the description Hazel has furnished were ever filed in those cases.
Petitioner’s Objection is OVERRULED.

August 19, 2014.
s/ Michael R. Merz
United States Magistrate Judge

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