Duncan v. Warden, Lebanon Correctional Institution
| Charles E Duncan |
| Warden, Lebanon Correctional Institution |
| 3:2009cv00078 |
| February 27, 2009 |
| US District Court for the Southern District of Ohio |
| Habeas Corpus (General) Office |
| CLARK |
| Michael R Merz |
| Walter H Rice |
| None |
| Federal Question |
| 28:2254 Petition for Writ of Habeas Corpus (State) |
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Filing
25
DECISION AND ENTRY ADOPTING REPORT AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE 19 IN THEIR ENTIRETY; PETITIONER'S RENEWED MOTION FOR EVIDENTIARY HEARING AND APPOINTMENT OF COUNSEL 18 AND MOTION FOR PRODUCTION 21 OVERRULED; PE TITIONER'S OBJECTIONS 22 TO MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS AND OBJECTIONS TO MAGISTRATE JUDGE'S DECISION AND ORDER DENYING SECOND MOTION TO PRODUCE 24 OVERRULED; JUDGMENT TO ENTER IN FAVOR OF RESPONDENT AND AGAINST P ETITIONER, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS ON ITS MERITS; CERTIFICATE OF APPEALABILITY GRANTED AS TO GROUNDS ONE AND TWO, AND DENIED AS TO GROUND THREE; ANTICIPATED LEAVE TO APPEAL IN FORMA PAUPERIS GRANTED, AS TO GROUNDS ONE AND TWO, AND DENIED AS TO GROUND THREE; TERMINATION ENTRY. Signed by Judge Walter H Rice on 3/15/2010. (jwd1)
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Filing
19
DECISION AND ORDER DENYING PETITIONER'S RENEWED MOTION FOR EVIDENTIARY HEARING AND APPOINTMENT OF COUNSEL; REPORT AND RECOMMENDATIONS - The Renewed Motion for Evidentiary Hearing and the dependent request for appointment of counsel are denied. It is respectfully recommended that the Petition be dismissed on the merits. Reasonable jurists could disagree with this conclusion as to Grounds One and Two, on which Petitioner should be given a certificate of appealability if he requests one and l eave to appeal in forma pauperis. Reasonable jurists would not disagree as to the third ground for relief, on which Petitioner should be denied a certificate of appealability if he requests one and leave to appeal in forma pauperis. Objections to R&R due by 10/26/2009. Signed by Magistrate Judge Michael R Merz on 10/7/2009. (kpf1)
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Filing
13
SUPPLEMENTAL DECISION ON MOTION TO PRODUCE; CORRECTED ORDER REGARDING REPLY DATE - This habeas corpus case is before the Court on Petitioner's Objections (Doc. No. 12) to the Magistrate Judge's Decision and Order Denying Petitioner's M otion to Produce (Doc. Nos. 10, 11). The Magistrate Judge denied the Motion to Produce, which is essentially a motion to expand the record under Rule 7 of the Rules Governing § 2254 Proceedings, because the document in question a memorandum fro m detective estep to Lieutenant Hill was never introduced in evidence in the state court proceedings, although it was handed to Detective Dewine to refresh his recollection about chronology at the suppression hearing. It is simply improper to add to the record in this case evidence which was not before the state courts when they decided the issue which is before this Court. Petitioner also objects to the Magistrate Judge's sua sponte "extension" of his time to file a reply/traver se to July 31, 2009. He correctly points out that the Court had previously granted him an additional forty days beyond the twenty-one provided in the Order for Answer. Therefore, Petitioner's reply/traverse is due August 25, 2009, not July 31, 2009. Signed by Magistrate Judge Michael R Merz on 7/27/2009. (kopf1, )
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| Petitioner: Charles E Duncan | |
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| Respondent: Warden, Lebanon Correctional Institution | |
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