Folley v. Foley
DECISION AND ORDER - Petitioner's Motion for Subpoena 109 is DENIED. Signed by Magistrate Judge Michael R. Merz on 7/29/2022. (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
- vs -
Case No. 3:22-cv-065
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
KEITH J. FOLEY, Warden,
DECISION AND ORDER
This habeas corpus case, brought pro se by Petitioner Derek Folley under 28 U.S.C. § 2254,
is before the Court on Folley’s Motion “To Subpoena Mr. Mike Foley1 Of The Common Pleas
Court Of Montgomery County (Ohio) To Produce Transcripts Of Case No. 2019 CR 01878 By
August 22, 2022" (ECF No. 109). Petitioner seeks to have this Court issue on his behalf a subpoena
duces tecum to Montgomery County Clerk of Courts Mike Foley for the following documents:
(01) the November 6, 2019 hearing transcript in case number -2019
(02) the May 17, 2021 trial transcript in case number -2019 cr
(03) the appellant brief in case number ca-29142 (filed date:
05/28/2021) of the State of Ohio Court of Appeals for the Second
Appellate District Court;
Documents are sought from The Honorable Mike Foley, Clerk of both the Montgomery County Court of Common
Pleas and the Ohio Second District Court of Appeals. He is not related to Petitioner or Respondent.
(04) the premature notice of appeal in case number CA-29142 (filed
date: 06/11/2021) in the same case;
(05) appellant brief amendment in case number ca-29142 (filed date:
06/29/2021) in the same case;
(06) the motion of appellant for reconsideration of final judgment in
case number ca-29142 (filed date: 07/08/2021) in the same case;
(07) the grand jury proceedings transcript in case number -2019 cr
(ECF No. 109).
Although he was convicted in this judicial district, Folley initially filed this case is the
Northern District of Ohio. After it was transferred here in March, 2022, the undersigned issued an
Order for Answer under Habeas Rule 5 within forty-eight hours (ECF No. 38). The time within
which the Court has ordered an answer does not expire until September 6, 2022 (ECF No. 92, 93).
That is only fifteen days more than would be consumed under Petitioner’s proposed timing.
As part of the State Court Record filed with the Answer, the Court expects the Attorney
General will include all of the documents Folley wants the Court to subpoena, except for the grand
jury transcripts. Given the way chosen by the Supreme Court to have State Court Records
prepared, certified, and filed, the Court is uncertain that substituting Mr. Folley’s proposed method
would be likely to improve matters.
Folley is not content to wait. He has gone so far as to accuse the Assistant Attorney General
assigned to the case of misconduct. The Court assures him that he is being treated consistently
with the hundreds of habeas corpus petitioners who have cases pending in this Court. Mr. Folley
is wont to cite cases from other circuits and other decades in which shorter times for returns on
writs were common. All that can be said is that the Court does not have control of its supply of
resources for deciding cases and cannot compel clerks of courts to hire as many people as would
be needed to process these cases as fast as Mr. Folley believes warranted.
Since this case was filed in December 2001, it has accumulated more than 650 pages of
filings, of which probably fewer than twenty-five have been generated by Respondent and we still
have not begun to grapple with substantive issues in the case.
Because it would subvert the process chosen by the Supreme Court for making up
the record in these cases, Petitioner’s Motion for Subpoena is DENIED.
July 29, 2022.
s/ Michael R. Merz
United States Magistrate Judge
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