Bays v. Warden Ohio State Penitentiary
Petitioner: Richard Bays
Respondent: Warden Ohio State Penitentiary
Case Number: 3:2008cv00076
Filed: March 17, 2008
Court: US District Court for the Southern District of Ohio
Office: Dayton Office
County: GREENE
Presiding Judge: Michael R Merz
Presiding Judge: Thomas M Rose
Nature of Suit: Death Penalty - Habeas Corpus
Cause of Action: 28:2254 Petition for Writ of Habeas Corpus (State)
Jury Demanded By: None

Available Case Documents

The following documents for this case are available for you to view or download:

Date Filed Document Text
December 29, 2017 Opinion or Order Filing 273 CLERK'S JUDGMENT. Signed on 12/29/17. (kma)
December 6, 2017 Opinion or Order Filing 269 SUPPLEMENT TO SUBSTITUTED REPORT AND RECOMMENDATIONS - Having reconsidered the matter in light of the Objections, the Magistrate Judge again recommends that the Sixteenth, Seventeenth, Eighteenth, and Nineteenth Grounds for Relief be dismissed wit hout prejudice to their consideration in the § 1983 case. Petitioner should be granted a certificate of appealability on Ground Five as already ordered (ECF No. 148) and as to Grounds Sixteen, Seventeen, Eighteen, and Nineteen because of the ch anges of course by the Sixth Circuit on the cognizability of lethal injection claims in habeas corpus. Objections to R&R due by 12/20/2017. Signed by Magistrate Judge Michael R. Merz on 12/6/2017. (kpf) Reported at Bays v. Warden, 2017 U.S. Dist. LEXIS 200400 (S.D. Ohio Dec. 6, 2017)Modified on 12/6/2017 (MRM).
December 1, 2017 Opinion or Order Filing 268 RECOMMITTAL ORDER - re 267 Appeal of Magistrate Judge Decision to District Court, filed by Richard Bays - The District Judge has preliminarily considered the Objections and believes they will be more appropriately resolved after further analys is by the Magistrate Judge. Accordingly, pursuant to Fed. R. Civ. P. 72(b)(3), this matter is hereby returned to the Magistrate Judge with instructions to file a supplemental report analyzing the Objections and any objections filed by Petitioner and making recommendations based on that analysis. Signed by Judge Thomas M. Rose on 12-1-2017. (de)
November 6, 2017 Opinion or Order Filing 265 SUBSTITUTED REPORT AND RECOMMENDATIONS - It is respectfully recommended that Grounds for Relief Sixteen, Seventeen, Eighteen, and Nineteen, pleaded in the Second Amended Petition, be dismissed for failure to state a claim upon which relief can be granted in habeas corpus. Dismissal should be without prejudice to pursuing these claims in the Protocol Case. Objections to R&R due by 11/20/2017. Signed by Magistrate Judge Michael R. Merz on 11/6/2017. (kpf)
October 16, 2017 Opinion or Order Filing 259 RECOMMITTAL ORDER - The District Judge has preliminarily considered the Objections and believes they will be more appropriately resolved after further analysis by the Magistrate Judge. Accordingly, pursuant to Fed. R. Civ. P. 72(b)(3), this matter i s hereby returned to the Magistrate Judge with instructions to file a supplemental report analyzing the Objections and any objections filed by Petitioner and making recommendations based on that analysis. Signed by Judge Thomas M. Rose on 10-16-2017. (de)
October 2, 2017 Opinion or Order Filing 256 REPORT AND RECOMMENDATIONS - It is respectfully recommended that Respondent's Motion to Dismiss (ECF No. 250) should be DENIED as to Grounds Sixteen, Seventeen, and Eighteen and GRANTED as to Ground Nineteen. Objections to R&R due by 10/16/2017. Signed by Magistrate Judge Michael R. Merz on 10/2/2017. (kpf)
May 23, 2017 Opinion or Order Filing 242 SUPPLEMENTAL OPINION - Having reconsidered the Motion to Amend in light of the Objections, the Magistrate Judge respectfully recommends the Objections be OVERRULED. Signed by Magistrate Judge Michael R. Merz on 5/23/2017. (kpf)
April 10, 2017 Opinion or Order Filing 235 DECISION AND ORDER - Petitioner's Renewed Motion for Leave to File a Second Amended and Supplemental Petition for Writ of Habeas Corpus 232 is GRANTED. He may, not later than April 24, 2017, file a Supplemental Petition including the four Gro unds for Relief set forth in his proposed amendments (ECF No. 232-1). Those Grounds for Relief shall be numbered Sixteen, Seventeen, Eighteen, and Nineteen to distinguish them from Grounds for Relief previously filed in this case and to avoid confusion with those earlier grounds. Signed by Magistrate Judge Michael R. Merz on 4/10/2017. (kpf) Modified on 4/10/2017 to change document type (kpf).
March 1, 2016 Opinion or Order Filing 221 DECISION AND ORDER ON MOTION TO AMEND - Petitioner's Renewed Motion to Amend (ECF No. 216) is DENIED. Signed by Magistrate Judge Michael R. Merz on 3/1/2016. (kpf)
October 15, 2015 Opinion or Order Filing 215 ORDER ADOPTING REPORT AND RECOMMENDATIONS 213 - The Court has reviewed the Report and Recommendations of United States Magistrate Judge Michael R. Merz 213 , to whom this case was referred pursuant to 28 U.S.C. Section 636(b), and noting that no o bjections have been filed thereto and that the time for filing such objections under Fed. R. Civ. P. 72(b) has expired, hereby ADOPTS said Report and Recommendations, accordingly, it is ORDERED that Respondent's Motion to Dismiss 205 is DENIED. Signed by Judge Thomas M. Rose on 10-15-2015. (de)
September 23, 2015 Opinion or Order Filing 213 DECISION AND ORDER ON MOTION TO AMEND; REPORT AND RECOMMENDATIONS ON MOTION TO DISMISS - The Magistrate Judges Decision and Order/Report and Recommendations of June 15, 2015 (ECF No. 201) is WITHDRAWN. The Warden's Motion to Dismiss is technical ly moot because Bays proposes to replace the Petition with an Amended Petition and it is respectfully recommended that the Motion to Dismiss be DENIED on that basis. bjections to R&R due by 10/13/2015. The Motion for Leave to File an Amended and Supplemental Petition is DENIED without prejudice to its renewal not later than October 9, 2015. Signed by Magistrate Judge Michael R. Merz on 9/23/2015. (kpf)
June 15, 2015 Opinion or Order Filing 201 DECISION AND ORDER; REPORT AND RECOMMENDATIONS - Petitioner's Motion for Leave to File an Amended Petition (Doc. No. 198) is dnied. It is respectfully recommended that the District Court dismiss Grounds Twelve and Thirteen without prejudice to a new petition raising any lethal injection claims Bays may have with respect to the January 9, 2015, Ohio lethal injection protocol. It is further recommended that the Court enter final judgment in accordance with its prior decision of August 6, 2012 (Doc. No. 134). Objections to R&R due by 7/2/2015. Signed by Magistrate Judge Michael R. Merz on 6/15/2015. (kpf)
November 24, 2014 Opinion or Order Filing 190 RECOMMITAL ORDER - re 188 Objections filed by Warden Ohio State Penitentiary. Pursuant to Fed. R. Civ. P. 72(b)(3), this matter is hereby returned to the Magistrate Judge with instructions to file a supplemental report. Signed by Judge Thomas M Rose on 11/24/14. (ep)
November 12, 2014 Opinion or Order Filing 186 SCHEDULING ORDER - It is hereby ORDERED that the Warden file any memorandum in opposition to the pending Motion for Leave to File an Amended Petition not later than November 21, 2014. Petitioner shall file any reply memorandum in support not later than November 28, 2014. Signed by Magistrate Judge Michael R Merz on 11/12/2014. (kpf1)
November 5, 2014 Opinion or Order Filing 183 DECISION AND ORDER; REPORT AND RECOMMENDATIONS - Petitioner's Motion for Extension of Time to Amend to add new lethal injection claims and his motion to stay consideration of those claims until April 13, 2015, is DENIED. It is hereby respectfull y recommended that the District Judge enter judgment: 1. Dismissing Petitioner's Grounds for Relief Twelve and Thirteen without prejudice as moot because related to a superseded Ohio lethal injection protocol; 2. Dismissing the claims made in Ba ys' original Petition with prejudice in accordance with the Order of August 6, 2012 (Doc. No. 134); 3. Granting Bays a certificate of appealability on his Fifth Ground for Relief only in accordance with the Order of January 29, 2013 (Doc. No. 148); and 4. Certifying under Fed. R. Civ. P. 54 that the judgment is final. Signed by Magistrate Judge Michael R Merz on 11/5/2014. (kpf1)
September 29, 2014 Opinion or Order Filing 181 ORDER - To protect the Warden's right to be heard on this Motion without prejudicing Petitioner's opportunity to plead, Petitioner's obligation to file an amendment or supplement to his methodof-execution claims is hereby SUSPENDED until a date to be set by the Court in ruling on the pending Motion. Signed by Magistrate Judge Michael R Merz on 9/29/2014. (kpf1)
January 3, 2014 Opinion or Order Filing 173 ENTRY AND ORDER OVERRULING BAYS' OBJECTIONS (Doc. 162 )TO THE MAGISTRATE JUDGE'S DECISION AND ORDER (Doc. 160 ); OVERRULING BAYS' OBJECTIONS (Doc. 171 ) TO THE MAGISTRATE JUDGE'S SUPPLEMENTAL OPINION AND SUPPLEMENTAL REPORT AND RECOMMENDATIONS (Doc. 169 ); ADOPTING THE MAGISTRATE JUDGE'S SUPPLEMENTAL REPORT AND RECOMMENDATIONS (Doc. 169 ) IN ITS ENTIRETY; DISMISSING BAYS' SECOND MOTION FOR LEAVE TO FILE AN AMENDED PETITION (Doc. 153 ) AND DECLINING TO CERTIFY ANY RELEVANT QUESTION TO THE OHIO SUPREME COURT. Signed by Judge Thomas M Rose on 1/2/14. (ep)
November 21, 2013 Opinion or Order Filing 169 SUPPLEMENTAL OPINION; SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON MOTION TO CERTIFY - The Magistrate Judge adheres to his prior recommendations as set forth in the Decision and Order of August 22, 2013. Signed by Magistrate Judge Michael R Merz on 11/21/2013. (kpf1)
September 17, 2013 Opinion or Order Filing 163 RECOMMITTAL ORDER re 162 Petitioner's Objections to the Magistrate Judge's Decision and Order 160 filed by Richard Bays. Signed by Judge Thomas M Rose on 9/17/13. (ep)
August 22, 2013 Opinion or Order Filing 160 DECISION AND ORDER denying Petitioner's Motion for Leave to File and Amended Petition (Doc. No. 153). Signed by Magistrate Judge Michael R Merz on 8/22/2013. (kpf1)
January 29, 2013 Opinion or Order Filing 148 ENTRY AND ORDER OVERRULING BAYS' OBJECTIONS (Doc. 139 ) TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS; OVERRULING BAYS OBJECTIONS (Doc. 146 )TO THE MAGISTRATE JUDGE'S SUPPLEMENTAL REPORT AND RECOMMENDATIONS; ADOPTING THE MAGIS TRATE JUDGE'S REPORT AND RECOMMENDATIONS (Doc. 137 ) ANDSUPPLEMENTAL REPORT AND RECOMMENDATIONS (Doc. 145 ) IN THEIR ENTIRETY AND GRANTING BAYS A CERTIFICATE OF APPEALABILITY ON HIS FIFTH GROUND FOR RELIEF ONLY. Signed by Judge Thomas M Rose on 1/29/13. (kje1)
December 28, 2012 Opinion or Order Filing 145 SUPPLEMENTAL REPORT AND RECOMMENDATIONS re 137 REPORT AND RECOMMENDATIONS re 128 MOTION for Certificate of Appealability filed by Richard Bays. In accordance with the foregoing analysis, it is again respectfully recommended that a certificate of appealability be granted on the Fifth Ground for Relief, but otherwise denied. Objections to R&R due by 1/14/2013. Signed by Magistrate Judge Michael R Merz on 12/27/2012. (kf)
November 20, 2012 Opinion or Order Filing 141 RECOMMITTAL ORDER - this matter is hereby returned to the Magistrate Judge withinstructions to file a supplemental report analyzing the Objections and Response and making recommendations based on that analysis. Signed by Judge Thomas M Rose on 11/20/12. (kje1)
October 31, 2012 Opinion or Order Filing 137 REPORT AND RECOMMENDATIONS ON CERTIFICATE OF APPEALABILITY - It is respectfully recommended that a certificate of appealability be issued on Ground Five but otherwise denied. Objections to R&R due by 11/19/2012. Signed by Magistrate Judge Michael R Merz on 10/31/2012. (kpf1)
August 6, 2012 Opinion or Order Filing 134 ENTRY AND ORDER OVERRULING BAY'S OBJECTIONS (Doc. 127 ) TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS (Doc. 109 ) AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS (Doc. 109 ) IN ITS ENTIRETY. Signed by Judge Thomas M Rose on 8/6/12. (kje1)
May 30, 2012 Opinion or Order Filing 126 ENTRY AND ORDER OVERRULING THE WARDEN'S OBJECTIONS (Doc. # 123 ) TO THE MAGISTRATE'S DECISION (Doc. # 121 ) TO GRANT BAYS' MOTION TO AMEND. Signed by Judge Thomas M Rose on 5/30/12. (cib1)
February 21, 2012 Opinion or Order Filing 110 ORDER REGARDING CERTIFICATE OF APPEALABILITY - In order to comply with Rule 11, it is hereby ordered that Petitioner file, not later than the date he files any objections to the pending Report and Recommendations, a motion for certificate of appealability on each claim on which he intends to appeal if District Judge Rose adopts the recommendation as to that ground for relief. Signed by Magistrate Judge Michael R Merz on 02/18/12. (pb1)
July 6, 2011 Opinion or Order Filing 103 DECISION AND ORDER - Respondent's Motion to Vacate is granted and Petitioner's Motion to Reconvene is denied, subject to reconsideration if Petitioner can demonstrate some purpose for Dr. Bergman's testimony at this stage of the case. The Court will proceed first to decide the § 2254(d)(1) and (d)(2) issues. In accordance with the schedule adopted by the Court initially, it is hereby ORDERED that Petitioner filed his reply/traverse not later than September 7, 2011. If Petitioner relies on the analysis in Lambert, supra, to attempt to meet his burden under 28 U.S.C. § 2254(d)(1), he shall do so explicitly in the reply/traverse. Signed by Magistrate Judge Michael R Merz on 7/6/2011. (kpf1)
January 18, 2011 Opinion or Order Filing 87 ORDER granting in part and denying in part 86 Motion for Reconsideration. Signed by Magistrate Judge Michael R Merz on 1/18/2011. (mrm0)
October 4, 2010 Opinion or Order Filing 74 ENTRY AND ORDER OVERRULING THE WARDEN'S OBJECTIONS (Doc. # 71 ) TO THE MAGISTRATE JUDGE'S DECISION AND ORDERGRANTING BAYS MOTION FOR AN EVIDENTIARY HEARING (Doc.# 54 ). Signed by Judge Thomas M Rose on 10/04/10. (pb1)
September 10, 2009 Opinion or Order Filing 41 DECISION AND ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S MOTION FOR DISCOVERY; SCHEDULING ORDER - Petitioner may depose his trial counsel on his second and fourth claims of ineffective assistance of trial counsel. He may also depose trial counsel on the first and third claims of ineffective assistance of trial counsel. Discovery of the complete Xenia Police Department files regarding the investigation of the murder of Charles Weaver is denied. All discovery in this case shall be completed not later than November 9, 2009, and any motion for evidentiary hearing shall be filed not later than December 9, 2009. Signed by Magistrate Judge Michael R Merz on 9/10/2009. (kopf1, )
June 9, 2009 Opinion or Order Filing 34 ENTRY AND ORDER ADOPTING IN PART THE MAGISTRATE JUDGES REPORT AND RECOMMENDATIONS (Doc. # 23 ) AND ADOPTING THE MAGISTRATE JUDGES SUPPLEMENTAL REPORT AND RECOMMENDATIONS (Doc. # 30 ). Signed by Judge Thomas M Rose on 06/09/09. (phil1, )
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Petitioner: Richard Bays
Represented By: Ruth L Tkacz
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Respondent: Warden Ohio State Penitentiary
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