Gapen v. Bobby
Petitioner: Larry Gapen
Respondent: David Bobby
Case Number: 3:2008cv00280
Filed: August 11, 2008
Court: US District Court for the Southern District of Ohio
Office: Dayton Office
County: MONTGOMERY
Presiding Judge: Sharon L Ovington
Presiding Judge: Walter H Rice
Nature of Suit: Death Penalty - Habeas Corpus
Cause of Action: 28:2254 Ptn for Writ of H/C - Stay of Execution
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
August 21, 2017 Opinion or Order Filing 230 ORDER - It is hereby ordered that the above captioned cause be administrativelyprocessed.. Signed by Judge Walter H. Rice on 8/21/17. (pb)AOProcessing/"Stay Reinstated
August 16, 2017 Opinion or Order Filing 229 ORDER REINSTATING STAY signed by Magistrate Judge Michael R. Merz on 8/16/2017. (kpf)
August 15, 2017 Opinion or Order Filing 228 DECISION AND ENTRY OVERRULING PETITIONER'S OBJECTIONS (DOCS. ## 221 , 225 ) TO MAGISTRATE JUDGE'S ORDER DENYINGMOTION TO AMEND (DOC. # 218 , AS SUPPLEMENTED BY DOC.# 224 . Signed by Judge Walter H. Rice on 8/15/17. (pb)
April 21, 2017 Opinion or Order Filing 224 SUPPLEMENTAL MEMORANDUM OPINION ON DENIAL OF MOTION TO AMEND - Conclusion Having reconsidered the matter in light of the Objections, the Magistrate Judge again concludes the proposed amendment would be futile and respectfully recommends the District Court overruled the objections. Signed by Magistrate Judge Michael R. Merz on 4/20/2017. (srb)
February 17, 2017 Opinion or Order Filing 218 DECISION AND ORDER GRANTING MOTION TO VACATE STAY AND DENYING MOTION TO AMEND. Signed by Magistrate Judge Michael R. Merz on 2/17/2017. (kpf) Modified on 2/17/2017 to correct text(kpf).
November 7, 2013 Opinion or Order Filing 202 RECOMMITTAL ORDER - this matter is hereby returned to the Magistrate Judge with instructions to file a supplemental report analyzing the Objections and Response and making recommendations based on that analysis. Signed by Judge Walter H Rice on 11/6/2013. (gh1)
October 8, 2013 Opinion or Order Filing 196 DECISION AND ORDER ON MOTIONS TO HOLD PETITION IN ABEYANCE AND EXPAND SCOPE OF REPRESENTATION - Petitioner's Motion to hold Petition for Writ of Habeas Corpus in Abeyance Pending Exhaustion of Newly Discovered Claims Being Presented in State Court (Doc. No. 191) is DENIED. Petitioner's Request for Authorization Allowing Federal Habeas Corpus Counsel to Conduct State Court Litigation (Doc. No. 192) is GRANTED. Signed by Magistrate Judge Michael R Merz on 10/8/2013. (kpf1)
July 2, 2013 Opinion or Order Filing 187 ORDER REGARDING CASE SCHEDULING - signed by Magistrate Judge Michael R Merz on 7/2/2013. (kpf1)
January 28, 2013 Opinion or Order Filing 175 ORDER TO FILE THIRD AMENDED PETITION FORTHWITH AND FOR AMENDED ANSWER AND REPLY. Signed by Magistrate Judge Michael R Merz on 01/28/2013. (kf)
January 9, 2013 Opinion or Order Filing 173 SUPPLEMENTAL OPINION ON PETITIONER'S MOTION FOR LEAVE TO FILE A THIRD AMENDED PETITION. Signed by Magistrate Judge Michael R Merz on 1/8/2013. (kpf1)
December 27, 2012 Opinion or Order Filing 171 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 is hereby returned to the Magistrate Judge with instructions to file a supplemental report analyzing the Objections and any response and making recommendations based on that analysis. The Court notes that the Warden's time to file objections to the Decision and Order expired December 26, 2012, and no objections were filed. Signed by Judge Walter H Rice on 12/27/12. (pb1)
September 14, 2012 Opinion or Order Filing 167 ORDER ADOPTING REPORT AND RECOMMENDATIONS - According, the Warden's Motion to Dismiss on the basis that Grounds Twenty-Four and Twenty-Five are not cognizable in habeas corpus is DENIED on the authority of Adams v. Bradshaw, supra. The Warden's procedural default defense to Ground 25 is DENIED without prejudice as premature. Signed by Judge Walter H Rice on 09/13/12. (pb1)
August 27, 2012 Opinion or Order Filing 165 REPORT AND RECOMMENDATIONS ON WARDEN'S MOTION TO DISMISS THE TWENTY-FOURTH AND TWENTY-FIFTH CLAIMS FOR RELIEF - It is respectfully recommended that the Warden's Motion to Dismiss on the basis that Grounds Twenty-Four and Twenty-Five are not cognizable in habeas corpus be denied on the authority of Adams v. Bradshaw, supra. It is further recommended that the Warden's procedural default defense to Ground 25 be denied without prejudice as premature. Objections to R&R due by 9/13/2012. Signed by Magistrate Judge Michael R Merz on 8/24/2012. (kpf1)
July 3, 2012 Opinion or Order Filing 150 DECISION AND ORDER DENYING MOTION TO STRIKE - Accordingly, the Court sua sponte extends the Petitioners time to file his Motion for Leave to File a Third Amended Petition to and including July 2, 2012. Respondents Motion to Strike is accordingly denied. Signed by Magistrate Judge Michael R Merz on 7/3/2012. (kf)
June 27, 2012 Opinion or Order Filing 147 ORDER REGARDING MOTION FOR EVIDENTIARY HEARING - In light of the Notice from Respondent that he declines to conduct the additional discovery authorized by the Court (Doc. No. 146 ), Petitioners motion for an evidentiary hearing is due to be filed not later than July 26, 2012. Signed by Magistrate Judge Michael R Merz on 06/27/2012. (kf)
May 30, 2012 Opinion or Order Filing 139 DECISION AND ORDER ON PETITIONERS PRIVILEGE CLAIMS. Signed by Magistrate Judge Michael R Merz on 5/30/2012. (kpf1)
May 15, 2012 Opinion or Order Filing 135 ORDER REGARDING REOPENED NEDOSTUP DEPOSITION - The portion of the Decision and Order regarding Petitioner's Motion to Reopen the Deposition of Juror David Nedostup (Doc. 131) objected to is VACATED, rendering the Objections moot. The Petitioner's Motion to Reopen the Juror Depositions (Doc. 125) is GRANTED in its entirety. Respondent's opposition to the Motion is preserved for appeal.Signed by Magistrate Judge Michael R Merz on 5/15/2012. (kpf1)
April 6, 2012 Opinion or Order Filing 131 DECISION AND ORDER - The Court finds that Petitioner has had adequate opportunity to examine Juror Nedostup on all of the material produced by him except the book. The Motion to Reopen is denied as to those materials but otherwise granted. Counsel shall consult with Judicial Assistant Kelly Kopf to arrange a time for the additional depositions. Signed by Magistrate Judge Michael R Merz on 4/6/2012. (kpf1)
January 25, 2012 Opinion or Order Filing 114 DECISION AND ORDER DENYING 111 PETITIONER'S MOTION TO STAY DISCOVERY. Signed by Magistrate Judge Michael R Merz on 1/25/2012. (mdf1)
January 23, 2012 Opinion or Order Filing 113 NOTICE - The Court takes judicial notice that juror Mark E. McGuire died on January 19, 2012. Signed by Magistrate Judge Michael R Merz on 1/23/2012. (kpf1)
January 18, 2012 Opinion or Order Filing 110 DECISION AND ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S MOTION TO AMEND AND DENYING PETITIONER'S MOTION TO EXPAND THE SCOPE OF DISCOVERY. Signed by Magistrate Judge Michael R Merz on 1/18/2012. (kpf1)
January 10, 2012 Opinion or Order Filing 107 SCHEDULING ORDER - This case is before the Court on Petitioner's Motion to Expand the Scope of Discovery (Doc. No. 105) and Motion for Leave to File an Amended Petition (Doc. No. 106). It is hereby ORDERED that the Warden file his response to th ose Motions, if any, not later than January 16, 2012. Petitioner's reply to any such response shall be filed not later than forty-eight hours after the response. The Magistrate Judge believes it is important to decide those Motions before conven ing the depositions of the jurors which Judge Rice has permitted. Therefore, no extensions of the times set in this paragraph will be granted unless accompanied by an agreed extension of the January 31, 2012, deadline for taking those depositions. When counsel advised the Court of the dates for deposition, they were set for Courtroom No. 1 upon finding that courtroom was available according to the courtroom scheduling calendar and that Courtroom No. 4 was scheduled for use by Judge Black for p art of the time needed for the depositions. On January 6, 2012, Judge Rice set a jury trial to commence in Courtroom No. 1 at 9:00 A.M. on January 23, 2012 in United States v. Atlas Lederer Co., Case No. 3:91-cv-309. The parties in that case estimate the length of trial at four days (Joint Proposed Final Pretrial Order, Doc. No. 877). Accordingly, the depositions will be conducted in Courtroom No. 5 on the morning of January 26 and continued in Courtroom No. 4 until completed. Signed by Magistrate Judge Michael R Merz on 1/10/2012. (kpf1)
November 16, 2011 Opinion or Order Filing 103 DECISION AND ORDER granting in part and denying in part 100 Warden's Motion for Appropriate Relief. Signed by Magistrate Judge Michael R Merz on 11/16/2011. (kje1)
October 31, 2011 Opinion or Order Filing 98 DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART PETITION LARRY GAPEN'S OBJECTIONS TO THE MAGISTRATE JUDGE'S DECISION AND ORDER DENYING IN PART PETITIONER'S FIRST MOTION FOR DISCOVERY (DOC. # 74 ); GIVING PETITIONER 90 DAYS TO DEPOSE JURORS AND ALTERNATE JURORS ON SUBCLAIMS (A) AND (B) OF FOURTEENTH GROUND FOR RELIEF. Signed by Judge Walter H Rice on 10/31/2011. (mdf1)
June 10, 2011 Opinion or Order Filing 91 DECISION AND ORDER - Petitioner's request to depose his appellate counsel is related to his need to show excusing cause and prejudice related to his Tenth and Eighteenth Grounds for Relief. Cullen in no way addresses use of discovery, expansion of the record, or evidentiary hearing for this purpose. As the Court has previously held, it is not required to decide procedural default claims prior to authorizing discovery. Therefore the depositions of direct appeal counsel may be taken as previously authorized. All discovery authorized herein shall be completed by September 1, 2011. Signed by Magistrate Judge Michael R Merz on 6/10/2011. (kpf1)
April 7, 2011 Opinion or Order Filing 86 ORDER granting 85 Motion to Stay; granting 85 Motion for Reconsideration and setting briefing schedule. Signed by Magistrate Judge Michael R Merz on 4/7/2011. (mrm0)
January 24, 2011 Opinion or Order Filing 77 SUPPLEMENTAL MEMORANDUM ON PETITIONER'S FIRST MOTION FOR DISCOVERY - Petitioner's Objections to the Magistrate Judge's Decision and Order on Discovery should be overruled. Signed by Magistrate Judge Michael R Merz on 1/24/2011. (kpf1)
January 18, 2011 Opinion or Order Filing 73 DECISION AND ORDER - Petitioner's Motion to Partially Strike Respondent's Sur-Reply (Doc. No. 66) is denied. Signed by Magistrate Judge Michael R Merz on 1/17/2011. (kpf1)
December 23, 2010 Opinion or Order Filing 71 ORDER granting in part and denying in part 51 Motion for Discovery. Discovery to be complete by April 30, 2011. Signed by Magistrate Judge Michael R Merz on 12/23/2010. (mrm0)
October 15, 2010 Opinion or Order Filing 53 ORDER - Respondent's Motion to Substitute Photographs for Physical Evidence (Doc. No. 43) is DENIED and Respondent's Motion for Leave to Amend the Appendix to the Return of Writ and the Trial Transcript Volumes (Doc. No. 42) is GRANTED in part and DENIED in part. Signed by Magistrate Judge Michael R Merz on 10/15/2010. (kpf1)
June 11, 2009 Opinion or Order Filing 29 ORDER VACATING STAY OF PROCEEDINGS - The Ohio Supreme Court having denied Petitioner's Application to Reopen in that court on June 3, 2009, this Court's prior Stay Order (Doc. No. 19) is DISSOLVED. As previously scheduled (Doc. No. 23), Petitioner's amended petition shall be filed not later than July 13, 2009. Signed by Magistrate Judge Michael R Merz on 6/10/2009. (kopf1, )
May 12, 2009 Opinion or Order Filing 26 ORDER - It is ORDERED that a copy of the videotape, and electronic copies of each parties' photographs be provided to the Court without delay. Signed by Magistrate Judge Michael R Merz on 5/12/2009. (kopf1, )
April 16, 2009 Opinion or Order Filing 25 ORDER - It is ORDERED, pursuant to agreement, that representatives from both parties are to appear in the chambers of Magistrate Judge Michael R. Merz, Room 505, 200 West Second Street, Dayton, Ohio 45202 on Tuesday, May 12, 2009, at 10:00 a.m. to review and photograph the physical evidence, and for Petitioner to videotape or digitally record the entire process. Signed by Magistrate Judge Michael R Merz on 4/16/2009. (kopf1, )
March 16, 2009 Opinion or Order Filing 20 ORDER - Respondent has indicated his intention to photograph the physical evidence in this case. The Court declines to permit removal of the physical evidence from its present containers for photographing because such removal poses risk of contributi on of deterioration of evidence. See House v. Bell, 547 U.S. 518 (2006). The Court will reconsider its ruling upon a motion from Respondent and for good cause shown or with the consent of Petitioner's counsel. Signed by Magistrate Judge Michael R Merz on 3/16/2009. (kopf1, )
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Petitioner: Larry Gapen
Represented By: Ruth L Tkacz
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Respondent: David Bobby
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