Opinion
Case No. 3:14-cv-58
03-24-2014
RYAN K. WIDMER, Petitioner, v. WARDEN, Correctional Reception Center, Respondent.
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz
SUPPLEMENTAL OPINION ON DENIAL OF TRANSFER; ORDER
DENYING STAY
This case is before the Court on Respondent's Objections to Pre-Trial Order, Motion for Reconsideration from District Court Judge, Motion to Rescind Order & Motion for Stay of Proceedings (Doc. No. 7). Therein the Warden objects to the Magistrate Judge's Decision and Order Denying Transfer (Doc. No. 6). District Judge Rice has, pursuant to Fed. R. Civ. P. 72(b), recommitted the matter to the Magistrate Judge "with instructions to file a supplemental opinion analyzing the Objections." (Order, Doc. No. 8, PageID 198.) Petitioner has also filed a Response to the Objections (Doc. No. 9).
Reconsideration of Transfer of Venue
To recap briefly, this is a habeas corpus case arising out of Petitioner's conviction in the Warren County Common Pleas Court. Therefore it should have been filed "at the location of Court which serves the county in which the state court judgment which is the subject of the habeas petition was filed." S. D. Ohio Civ. R. 82.1(f). The correct location of Court under that Rule is Cincinnati, but Petitioner's counsel filed the case at the Dayton location instead. Had it been filed in Cincinnati, it would have been assigned randomly to one of the Cincinnati resident District Judges and one of the resident Magistrate Judges, but assigned for research and drafting purposes to one of the pro se law clerks who work at the Cincinnati location of Court.
Although referred to nationally as "pro se law clerks," these staff attorneys in this and other District Courts are routinely assigned habeas corpus cases, whether or not the petitioner are proceeding pro se .
For more than five years, the undersigned has been assisting the Cincinnati location of Court by accepting transfer of habeas corpus cases which the pro se law clerks have been unable to reach because of the press of the caseload. Because of this steady pattern of transfer, the undersigned, upon noting that this case involved a Warren County judgment, contacted Magistrate Judge Litkovitz, who supervises the pro se law clerks, and obtained her approval to leave the case in Dayton. The undersigned disclosed these facts in the Order for Answer (Doc. No. 3, PageID 179). Unsatisfied with this explanation, the Attorney General now asserts a right to have this case transferred to the Cincinnati location of Court (Motion, Doc. No. 5); (Objections, Doc. No. 7).
The Attorney General, representing the Warden in this case, acknowledges that 106 non-capital habeas cases in which that office has represented the respondent have been transferred to Dayton since January 1, 2010 (Motion, Doc. No. 7, PageID 193). In addition there have been a number of pre-judgment habeas actions under 28 U.S.C. § 2241 transferred where Respondent was represented by the relevant county prosecutor.
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The Warden bases his argument on the statutes governing venue as between different Districts Courts. Thus he argues "[v]enue is case specific and dependent on particular case facts. See 28 U.S.C. § 1391(b)." (Objections, Doc. No. 7, PageID 193.) He extends the analogy to discuss convenience of the parties as a factor, citing 28 U.S.C. § 1404(a) and Van Dusen v. Barrack, 376 U.S. 612, 634 (1964). He notes that 28 U.S.C. § 1406(a) suggests dismissal when a case is filed in the wrong division or district. He concludes by quoting the Supreme Court: "the clear absence of venue in the District Court further strengthens the odor of impermissible forum shopping." Id. at 195, quoting Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 23 (1987).
The analogy limps because the venue statutes govern as between Districts, but do not purport to govern the allocation of work within a division of a district court. Once a case has been filed in the proper District and Division, as this one was, it is up to the Court to decide how it will be assigned. The most striking example is with capital habeas cases. While they are to be filed at the appropriate location of Court determined under S. D. Ohio Civ. R. 82.1(f), they are initially assigned randomly to any one of the active District Judges anywhere in the District. The undersigned currently has capital habeas cases referred from four District Judges resident in Cincinnati, two in Dayton, and two in Columbus, a situation which has prevailed for more than fourteen years without any suggestion that it is contrary to law.
The other fallacy in the Warden's argument is the assumption that S. D. Ohio Civ. R. 82.1(f) creates a right in a habeas litigant to insist that a case be adjudicated at the location of court where it is filed. The venue statutes, adopted by Congress, give a defendant summoned in the wrong venue an opportunity to move for dismissal or transfer. The Local Rules contain no such procedure. S. D. Ohio Civ. R. 82.1(f) is purely Court-created. While Congress determines which counties are assigned to which Division, the statute does not purport to allocate caseload between divisions, much less within a Division as to location of Court. See 28 U.S.C. § 115.
Finally, Petitioner's counsel affirms under oath that there was no forum-shopping motive to the choice of Dayton, but merely a calculation that the Dayton courthouse was closer to the Warren County Court of Common Pleas than is the Potter Stewart Courthouse in Cincinnati.
While perhaps of little consequence to the litigation of this case, adopting the interpretation of the Local Rules contended for by Respondent would seriously upset this Court's capital habeas docket because of the large proportion of that docket generated in the Hamilton County Common Pleas Court.
Because S. D. Ohio Civ. R. 82.1(f) is a work-allocation rule among the Judges of this Court rather than a right-creating rule for the benefit of litigants, Respondent's interpretation should be rejected.
Denial of Stay of Proceedings
Upon initial review of the Petition, the undersigned ordered the Respondent Warden to file an answer to the Petition not later than May 1, 2014 (Order for Answer, Doc. No. 3). The Warden now seeks to have his obligation to answer stayed until the venue question is finally decided (Appeal, Doc. No. 7). The request for a stay implicitly recognizes that Magistrate Judge orders on non-dispositive pre-trial matters are not automatically stayed by an appeal. S. D. Ohio Civ. R. 72.3.
Respondent offers no reason for a stay. The contents of an order for answer in a habeas case are either dictated by Rule 5 of the Rules Governing § 2254 Cases or, by practice in the Western Division, very closely parallel, so Respondent will be required to answer the Petition whether or not the case is transferred to Cincinnati. Delay in processing a non-capital habeas case always favors the respondent because the petitioner remains imprisoned while the case is decided. Therefore a habeas case should not be stayed without good cause and Respondent here has presented none. The request for stay is DENIED.
Michael R. Merz
United States Magistrate Judge