Opinion
08-27-2013
STEPHAN H. WHITT, Petitioner, v. WARDEN, LEBANON CORRECTIONAL INSTITUTION, Respondent.
JUDGE JAMES L. GRAHAM
Magistrate Judge Elizabeth A. Preston Deavers
OPINION AND ORDER
On December 3, 2012, the Magistrate Judge issued a Report and Recommendation recommending that Respondent's Motion to Dismiss this action as unexhausted. Doc. 16, be granted, and that Petitioner's Request for a Stay and Motion to Dismiss Counts I, 3, and 4 of the Indictment, Docs. 1 and 10, be denied. The Magistrate Judge denied Petitioner's Request for Appointment of Counsel, Doc. 19, and Petitioner's Motion for a Stay, Doc. 20. On February 5, 2013, pursuant to this Court's order, Respondent filed a Supplemental Return of Writ indicating that the Ohio Court of Appeals had dismissed Petitioner's post-conviction petition for want of prosecution, but that his appeal remained pending in the Ohio Supreme Court. Respondent again requested dismissal of this action as unexhausted. Doc. 33. However, on April 24, 2013, the Ohio Supreme Court dismissed Petitioner's post-conviction appeal. The Court takes judicial notice of the docket of the Ohio Supreme Court, which is a matter of public record. See Fed. R. Evid. 201(b)(2) ("The court may judicially notice a fact that is not subject to reasonable dispute because it . . .can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned."); Fed. R. Evid. 201(c)(1) (The court . . . may take judicial notice on its own . . . ."); McGehee v. United States Army Corps of Engineers, 508 F.App'x 368, 370 (6th Cir. 2012) (taking judicial notice of state-court filings, noting that such filings "are public records and properly noticed").
Accordingly, the Report and Recommendation. Doc. 22, is adopted in part. Respondent's Motion to Dismiss and Supplemental Motion to Dismiss, Docs. 16 and 33, are denied. Respondent is directed to file a response to the Petitioner's claims within fourteen (14) days, attaching as supplemental exhibits any relevant documents from the Ohio courts.
Petitioner's Request for a Stay, Motion to Dismiss Counts I, 3, and 4 of the Indictment, and Motion to Dismiss Respondent's Motion of Dismissal, Doc. 1, 10, and 23, are denied. Petitioner's Motion to Proceed in forma pauperis on Appeal, Doc. 29, is denied without prejudice to renewal upon the filing of an appeal.
IT IS SO ORDERED.
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JAMES L. GRAHAM
United States District Judge