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Gillispie v. Warden

United States Court of Appeals, Sixth Circuit

November 13, 2014

ROGER DEAN GILLISPIE, Petitioner-Appellee,
v.
WARDEN, LONDON CORRECTIONAL INSTITUTION, Respondent-Appellant

Page 324

Appeal from the United States District Court for the Southern District of Ohio at Dayton. No.3:09-cv-00471--Michael R. Merz, Magistrate Judge.

ARGUED:

Stephanie L. Watson, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for Appellant.

Mark Godsey, OHIO INNOCENCE PROJECT, Cincinnati, Ohio, for Appellee.

ON BRIEF:

Stephanie L. Watson, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for Appellant.

Mark Godsey, OHIO INNOCENCE PROJECT, Cincinnati, Ohio, Pierre H. Bergeron, SQUIRE SANDERS LLP, Cincinnati, Ohio, for Appellee.

Before: ROGERS and KETHLEDGE, Circuit Judges; MALONEY, District Judge.[*]

OPINION

Page 325

KETHLEDGE, Circuit Judge.

This case is before us a second time. In its first iteration, the State appealed a December 2011 order granting Roger Gillispie a conditional writ of habeas corpus. That appeal became moot, however, when in parallel proceedings the Ohio courts expressly vacated the criminal judgment that the State sought to preserve by means of its appeal. In connection with our dismissal of that appeal, the State failed to request that we vacate the conditional-writ order, though it likely could have obtained that relief if it had made the request. Instead, on remand, the State filed a motion to vacate the conditional-writ order pursuant to Rule 60(b). The district court denied the motion, and the State now appeals the denial. We affirm, though not for the reasons stated by the district court.

I.

In August 1988, a man abducted a woman at gunpoint from a parking lot near Dayton, Ohio, took her to a remote area, and forced her to perform oral sex on him. Fifteen days later the same thing happened again, except on that occasion the man abducted two women. A grand jury indicted Gillispie for these crimes in October 1990. The following year, a jury convicted him of nine counts of rape and three counts of kidnapping, among other counts. The trial court sentenced Gillispie to 22 to 56 years in prison. The Ohio Court of Appeals affirmed Gillispie's convictions and sentence. The Ohio Supreme Court denied leave to appeal.

Over the next 15 years, Gillispie brought a variety of petitions and motions in state court. None secured his release. Then, in 2008, Gillispie moved for a new trial on three grounds, only two of ...


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