Hazel v. Warden, Chillicothe Correctional Institution

Filing 47

REPORT AND RECOMMENDATIONS ON OBJECTIONS TO DISCOVERY ORDERS - It is respectfully recommended that the Objections be overruled. Objections to R&R due by 9/26/2014. Signed by Magistrate Judge Michael R Merz on 9/9/2014. (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.

REPORT AND RECOMMENDATIONS ON OBJECTIONS TO
DISCOVERY ORDERS

This habeas corpus case is before the Court on Petitioner’s Objections (Doc. No. 44) to
the Magistrate Judge’s Decision and Order Overruling Petitioner’s Objection to respondent’s
Notice of Filing (Doc. No. 38) and Petitioner’s Objections (Doc. No. 46) to the Magistrate
Judge’s Decision and Order Overruling Petitioner’s Second Objections to Respondent’s Notice
of Filing (Doc. No. 40). Judge Black has recommitted the case for reconsideration in light of
Hazel’s Objections (Doc. No.42).
In the first of these decisions, the Magistrate Judge declined to order the State of Ohio to
create bills of particulars in the underlying criminal cases when they had not been created during
the course of the underlying litigation (Decision and Order, Doc. No. 38, PageID 2876). Hazel
objected and the Magistrate Judge overruled the objections on grounds (1) this Court could not
order the creation of documents which did not previously exist, (2) the fact that demands for bills
of particulars had bene made by counsel did not prove that they existed, and (3) the Magistrate

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Judge declined to order the production of one bill of particulars known to exist (in Case No. 03CR-592) because it was not material to a final decision on the merits of this case (Doc. No. 40,
PageID 2889-90).
Hazel makes the following objections:
Objection 1: The Magistrate Judge should have ordered Respondent to file complete docket
sheets in Cases No. 03-CR-592, 09-CR-212, 10-CR-808, and 11-CR-49 (Doc. No. 44, PageID
2939).
Response: Hazel’s continued assertion that the docket sheets already filed are not “complete”
does not prove that assertion. In the absence of proof, the regularity of these public records is to
be presumed.
Objection 2: “The Magistrate should have compelled the Respondent to produce the bills of
particulars in Case Nos. 03-CR-592, 09-CR-212, 10-CR-808, and 11-CR-49 after he conceded
that they did in fact exist.” (Doc. No. 46, PageID 2957).
Response:

The bills of particulars which were “conceded” to exist are not the ones the

Magistrate Judge initially ordered the State to file and to which they responded that such bills of
particulars did not exist.
Objection 3: Hazel objects to the Magistrate Judge’s conclusion that there was not a violation
of Brady v. Maryland, 373 U.S. 83 (1963), in the failure to disclose the bill of particulars in 03CR-592. (Doc. No. 46, PageID 2958.) Hazel insists that the bill of particulars in that case is
exculpatory in that it did not include with respect to the aggravated burglary charge that the
victim was a family or household members.
Response: The bill of particulars in 03-CR-592 is not exculpatory because the victim’s being a
family or household member was not an element of the offense in that case. It was an enhancing

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element in the 2010 cases and had to be proved by Wilson’s testimony about who the victim was.
There was no Brady violation involved here because the record makes very clear Hazel’s counsel
had a copy of the document during trial and cross-examined Wilson from it.
Objection 4: There is a constitutional right to a bill of particulars upon the request of it, citing
Ohio Revised Code § 2941.07 and Ohio R. Crim. P. 7(E).
Response: The two cited sources are not part of the United States Constitution.
Accordingly, it is respectfully recommended that the Objections be overruled.

September 9, 2014.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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