Foster v. Warden, Toledo Correctional Institution

Filing 105

REPORT AND RECOMMENDATIONS - It is respectfully recommended that Foster's Motion (ECF No. 104) be denied. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Co urt should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 5/29/2018. Signed by Magistrate Judge Michael R. Merz on 5/15/2018. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
CHRISTOPHER FOSTER,
Petitioner,

:

- vs -

Case No. 1:15-cv-713
Consolidated with 1:16-cv-846
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

RONALD ERDOS, WARDEN,
Southern Ohio Correctional Facility,
:
Respondent.

REPORT AND RECOMMENDATIONS

These consolidated habeas corpus cases are before the Court on Petitioner’s “Motion or
Advisory to the Court on New Crangle Holdings for Clarification.” (ECF No. 104).
In the Motion, Foster asserts that the “Court has been using ‘West Law key number system”
which cites an erroneous interpretation of Crangle v. Kelly,” 838 F.3d 673 (6th Cir. 2016). Foster
advises the Court that he has cited what he refers to as Crangle’s second holding, to wit, “The
nunc pro tunc sentencing order was [only] a new judgment because it changed the substance of
the inmate’s sentence.” As is evident from Foster’s use of the brackets, the word “only” is his
interpolation into the report of the Crangle decision. Moreover, the “holding” which he quotes is
an editorial summary by the West editors, not something identified as a holding by the Court of
Appeals.
In recommending that Foster’s two previous motions for reconsideration be denied, the
Magistrate Judge wrote: “Crangle is irrelevant to Foster’s claims, none of which were held barred

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by the statute of limitations.” (Report, ECF No. 97, PageID 1699). In interpreting Crangle in that
Report, the Magistrate Judge did not in any way use the West Key Number system.
As best the Magistrate Judge understands Foster’s Motion, it is that this “second holding” in
Crangle somehow supports his claim that the 2013 nunc pro tunc termination entry in his case violates
the Ex Post Facto Clause of the United States Constitution as interpreted in Lynce v. Mathis, 510 U.S.
433 (1997). In that case, the Supreme Court held that a state statute reducing early release credits in
Florida and resulting in petitioner’s return to custody after his release violated the Ex Post Facto Clause.

As the Magistrate Judge has previously written, although the nunc pro tunc entry

memorializes a post-release control term of five years as a
mandatory term of sentence. However, the original judgment in the
case also memorializes a mandatory five-year term of post-release
control (State Court Record, ECF No. 10, PageID 59). Any claimed
error regarding post-release control in this first judgment entry was
not raised on direct appeal.
(Report, ECF No. 97, PageID 1699). Crangle does not speak to the Ex Post Facto Clause at all.
Nor does Lynce have any application because with respect to post-release control, the nunc pro
tunc termination entry does not impose on Foster a worse than before sentence.
Construed as a motion for relief from judgment, Foster’s Motion fails to show any error in
the Court’s prior judgment in this case and should therefore be denied. Because reasonable jurists
would not disagree with this conclusion, Petitioner should be denied a certificate of appealability
and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous
and therefore should not be permitted to proceed in forma pauperis.

May 15, 2018.
s/ Michael R. Merz
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days
because this Report is being served by mail. .Such objections shall specify the portions of the
Report objected to and shall be accompanied by a memorandum of law in support of the objections.
If the Report and Recommendations are based in whole or in part upon matters occurring of record
at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or
such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless
the assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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