In Re: John W. Byrd, Jr. Movant

269 F.3d 585, 2001 U.S. App. LEXIS 21769, 2001 WL 1251691

Opinions

ORDER

A majority of the judges in regular active service have voted that the court remand this matter for the development of a factual record sufficient to permit sua sponte consideration of a request for leave to file a second petition for a writ of habeas corpus. The jurisdictional basis for a rehearing sua sponte is Triestman v. United States, 124 F.3d 361, 367 (2d Cir.1997); Krimmel v. Hopkins, 56 F.3d 873, 874 (8th Cir.1995).

The remand for the development of a factual record is ancillary in nature to the petition for the writ of habeas corpus. A majority of the active judges has decided that a factual basis does not exist sufficient to permit the en banc court to entertain the Petitioner’s request for a successive filing. We therefore issue this remand, directed to the Chief Judge of the Southern District of Ohio for appointment of a Magistrate Judge to promptly conduct an appropriate factual hearing.

The hearing should develop a record with regard to John Byrd’s claim of innocence presented to the Ohio courts but on which no testimony of witnesses or evidence was taken. We direct that the scope of the factual inquiry conducted by the Magistrate Judge shall include testimony relating to matters set forth in the affidavits of John Brewer, Dan Cahill, Darryl Messer, Roger Hall and Benny Fields.

In addition, the factual inquiry shall include, but is not limited to, an examination of the following:

1. Documents prepared by the Hamilton County Prosecutor’s Office and/or Hamilton County Sheriffs Department authorizing, directing or identifying Ronald Armstead, Virgil Jordan, Marvin Randolph and Robert Jones to be questioned in matters relating to the issue of innocence raised in this matter.

2. Documents prepared or received by ■ the Hamilton County Prosecutor’s office or Hamilton County Sheriffs Department or Cincinnati Police Department relating to Ronald Arm-stead’s incarceration, testimony and parole revocation hearing and disposition.

3. Documents or reports received by the Attorney General’s office or Hamilton County Prosecutor’s office from the Ohio Department of Corrections or its institutions, relating to this matter.

We further direct that this matter proceed on an expedited basis with the Magistrate Judge submitting a report with factual findings and recommendations to the en banc court within 45 days from date of the appointment of the Magistrate Judge.

IT IS ORDERED that the matter be, and it hereby is remanded. The Magistrate Judge shall report factual findings to this court, which retains jurisdiction in the matter.

IT IS FURTHER ORDERED that the stay of execution currently in place remain in force, pending further order of this court.