Huber v. Warden Chillicothe Correctional Institution, No. 3:2013cv00055 - Document 10 (S.D. Ohio 2013)

Court Description: DECISION AND ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S MOTION TO EXPAND THE RECORD 8 . Signed by Magistrate Judge Michael R Merz on 4/28/13. (kje1)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON JOSEPH W. HUBER, JR., Petitioner, Case No. 3:13-cv-055 District Judge Walter Herbert Rice Magistrate Judge Michael R. Merz -v: NORMAN ROBINSON, Warden, Respondent. DECISION AND ORDER GRANTING IN PART AND DENYING IN PART PETITIONER S MOTION TO EXPAND THE RECORD This habeas corpus case is before the Court on Petitioner s Motion to Expand the Record to include the document embodying the Entry of Dismissal of the original defective indictment in Petitioner s case (Motion, Doc. No. 8, PageID 635). In opposition, the Warden notes that he incorporated in the Return here all the documents included in the record in Case No. 3:11-cv-008 and the transcript which purports to show the timing of the dismissal in question, but reports the Huber I trial court docket does not reflect a formal entry prior to trial dismissing Counts 2 and 4, see attached Exhibit A, this statement by the trial court in the Huber I judgment of conviction conclusively demonstrates that the charge that was to be the foundation of Huber II had been dismissed prior to the trial in Huber I . (Doc. No. 9, PageID 638). Accordingly, the Motion is GRANTED to the extent that the Court will consider the record from the prior case to the extent necessary to determine the Double Jeopardy claim. The Motion is DENIED to the extent that this Court cannot order the inclusion of a document which 1 does not exist. The Court considers the Warden s response as an admission that no such document exists or can be found. April 28, 2013. s/ Michael R. Merz United States Magistrate Judge 2

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