Brown v. Warden, Warren Correctional Institution

Filing 43

DECISION AND ORDER ON RENEWED MOTION TO EXPAND THE RECORD 42 . Signed by Magistrate Judge Michael R. Merz on 4/11/2018. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JEFFREY ANTONIO BROWN,
Petitioner,

:

- vs -

Case No. 3:17-cv-080
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

SHEA HARRIS, Warden,
Warren Correctional Institution,
:
Respondent.

DECISION AND ORDER ON RENEWED MOTION TO EXPAND
THE RECORD

This habeas corpus case under 28 U.S.C. § 2254 is before the Court on Petitioner’s Motion
to Expand the Record to include file-stamped copies of “Exhibit 15” and “Exhibit 48.”(ECF No.
42).
In his prior Motion to Expand the Record, Brown requested to “include exhibits numbers,
12, 14, 15, 16, 17, 25, 26, 27, 28, 30, 32, 33, 48, and 58 of ECF No. 21.” (ECF No. 23, PageID
3471). The Magistrate Judge denied adding Exhibits 15 and 48 1 for the following reasons:
Exhibit 15 (PageID 3490-99) does not show that it was ever filed in
the state court and is excluded on that basis.
***
Exhibit 48 (PageID 3574-80) purports to be a memorandum in
opposition to motion to dismiss by appellees in the Second District

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The Magistrate Judge remains unsure how these documents were thus numbered and what they were exhibits to.
That is immaterial to the propriety of including them in the record here.

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Court of Appeals. The document does not show that it was ever
filed in the Second District and is excluded on that basis.
(Decision and Order, ECF No. 24, PageID 3587-88.) The Decision on the prior Motion was filed
December 1, 2017, and Brown filed no objection. He asserts he did not do so because the case
was then pending on a Report recommending Grounds One through Eighteen be dismissed as timebarred (Motion, ECF No. 42, PageID 3806). That Report has been withdrawn and Brown asserts
these exhibits are now relevant “because they are apart [sic] of the State Court Record in this case,
and the Respondent failed to provide them.” Id.
In his new Motion. Brown does not claim that the prior decision was wrong, but says
instead that he has now “finally obtained one file stamped copy of each motion to demonstrate
prove that the motions were in fact filed in the Second District Court of Appeals of Ohio as attested
to in (ECF No. 21, PageID 3038, 3077; ECF No. 25, PageID 3595-96, 2603-05; ECF No. 39,
PageID 3738-41) where Brown attempted to support his claims concerning these filings.” Id.

Exhibit 15

As attached to the instant Motion, Exhibit 15 consists of ten handwritten pages labeled
Application for Reconsideration and file-stamped as filed with the Ohio Second District Court of
Appeals on July 27, 2011, in its Case No. 24658 (ECF No. 42-1, PageID 3808-17).
The next page (PageID 3818) is labeled “Appendix” and bears reference to its being page
8 of 16 of a scanned document but also page 5 of 28 of a scanned document. The bottom of the
page contains the web address of the Montgomery County Clerk of Courts and the date 11/20/2008

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(PageID 3818).
The next page (PageID 3819) appears to be page 1 of a three-page document from the
docket of the Montgomery County Clerk of Courts in Case No. 1995 CR 01536 showing filing
dates from 04/17/2003 to 06/01/2011, the clerk’s website address, and the date 06/14/2011.
A search of the Public Records portion of the Montgomery County Clerk of Courts website
shows that there was docketed on July 27, 2011, an Application for Reconsideration of the Second
District’s Decision of July 11, 2011. The docketed matter consist of what Brown has submitted
with his instant Motion at PageID 3808-19.

Therefore the renewed Motion to Expand is

GRANTED as to “Exhibit 15.”

Exhibit 48

As attached to the instant Motion, Exhibit 48 consists of seven handwritten pages (ECF
No. 42-1, PageID 3820-3826. Attached as Exhibit 1 (PageID 3827) is a single page containing a
copy of an Inmate Pass dated 05/3/2011and a Personal A/C Withdrawal Check Out Slip dated
04/27/2011. Attached as Exhibit 2 is a document which is unlabeled but appears to be an inmate
pass for Brown to the mail room on 04/30/2011. Finally, there is an attached single-page document
(PageID 3829) which purports to be a note from Brown to some unnamed person asking whether
his mail to the Common Pleas Court was sent on April 27, or 28, 2011, was actually sent; Brown
notes that his postage slip for $1.68 was returned without a paid stamp.
A search of the Public Records portion of the Montgomery County Clerk of Courts website
shows that there was docketed on June 14, 2011, a document labeled “Motion in Contra to
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Appellees’ Motion to Dismiss.” The docketed matter consist of what Brown has submitted with
his instant Motion at PageID 3820-29. Therefore the renewed Motion to Expand is GRANTED
as to “Exhibit 48.”
Brown has not explained why he has just now obtained file-stamped copies of these
documents, since they have been available on the public website of the Montgomery County Clerk
of Courts with the file-stamp showing for well over six years.

April 10, 2018.
s/ Michael R. Merz
United States Magistrate Judge

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