Foster v. Warden, Toledo Correctional Institution

Filing 117

ORDER overruling re 111 and 115 Objection to Magistrate Judge Order; this matter is transferred to the Sixth Circuit Court of Appeals for that court's consideration of whether or not to grant permission to proceed; and this matter remains cl osed. Signed by Judge Michael R. Barrett on 12/27/18. (Copy of this order will be emailed to the Sixth Circuit Court of Appeals by the Clerk.) (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Christopher Foster,
Petitioner,
Case No.: 1:15-cv-713
v.
Judge Michael R. Barrett
Warden, Toledo Correctional Institution,
Respondent.
ORDER
This matter is before the Court on the Magistrate Judge’s June 29, 2018 Order
transferring this matter to the Sixth Circuit for that court’s consideration of whether or
not to grant permission to proceed.

(Doc. 108).

Petitioner filed objections to the

Magistrate Judge’s Order. (Doc. 111, 115).
This Court shall consider objections to a magistrate judge's order on a
nondispositive matter and “shall modify or set aside any portion of the magistrate
judge's order found to be clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a).
After review, the district judge “may accept, reject, or modify the recommended
decision; receive further evidence; or return the matter to the magistrate judge with
instructions.” Id.; see also 28 U.S.C. § 636(b)(1).
Petitioner brought two habeas corpus actions pursuant to 28 U.S.C. § 2254
which were consolidated under this case number. In both petitions, Petitioner’s claimed
that his sentence is unconstitutional based on a nunc pro tunc order entered by the
Hamilton County Court of Common Pleas. The July 2, 2015 nunc pro tunc order stated
that Petitioner had been found guilty by a jury, and also clarified that in addition to the

five years of post-release control already imposed as to Count Three, Petitioner was
also sentenced to three years of post-release control as to Count Two. (Doc. 10, Exh.
18, PageID # 115).
The Magistrate Judge issued three Reports and Recommendations (“R&Rs”)
which recommended granting Respondent’s Motion to Dismiss; and denying Petitioner’s
Motion for Judgment on the Pleadings. (Docs. 41, 61, 72). The Magistrate Judge
concluded that Petitioner’s claims for relief are not cognizable in habeas corpus, or are
procedurally defaulted. On July 24, 2017, this Court adopted the Magistrate Judge’s
R&Rs and dismissed Petitioner’s case with prejudice. (Doc. 81). This Court ruled that
Petitioner’s claim is an alleged violation of state law which does not rise to the level of a
constitutional violation. Accord Floyd v. Alexander, 148 F.3d 615, 619 (6th Cir. 1998)
(“while the trial court may have violated Ohio Criminal Rule 43 in entering the nunc pro
tunc order changing Floyd's sentence from concurrent to consecutive sentences in his
absence, this error does not rise to a ‘fundamental miscarriage of justice’ or constitute a
violation of procedural due process of law. Floyd has alleged a violation of a state law
that is not cognizable in a federal habeas corpus proceeding.”). This Court adopted
subsequent R&Rs by the Magistrate Judge which denied Petitioner’s requests to
reconsider this conclusion. (Doc.116).
In the meantime, Petitioner filed a motion for “Relief Upon Newly-Acquired
Evidence for Guaranteed Immediate Release through this Ex Post Facto Prohibition
Motion.” (Doc. 107). The Magistrate Judge concluded that this Motion presents a “new”
habeas claim not previously litigated by this Court in this case; and constitutes a
second-or-successive habeas corpus application. (Doc. 108). The Magistrate Judge

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explained that pursuant to 28 U.S.C. § 2244, Petitioner must obtain authorization for the
filing of a second or successive habeas corpus petition from the Sixth Circuit Court of
Appeals.
The Court notes that in Ground Three in Case No. 1:16cv846, Petitioner did
plead a claim based on an ex-post facto clause violation. (Doc. 1, PageID # 8). In
Ground Three, Petitioner claimed:
Due process . . . does not countenance an unforeseeable and retroactive
judicial expansion of narrow and precise statutory language. The Ex Post
Facto Clause limits the powers of the legislature and does not of its own
force apply to judicial decision making. The judgment of conviction
change affected my substantial personal rights and not just modes of
procedure which do not affect matters of substance.
(Doc. 1, PageID # 8). Case No. 1:16cv846 was consolidated with this case. (Doc. 50).
The Magistrate Judge analyzed this claim as follows in a March 10, 2017 R&R:
Respondent’s Motion [to Dismiss] analyzes these four Grounds for Relief
as all raising the same claim, to wit, that it was error for the Common
Pleas Court to correct the judgment entry to reflect that Mr. Foster was
convicted by a jury. Petitioner has not contested that reading.
(Doc. 61, PAGEID #1496). As explained above, the Magistrate Judge found that these
claims were not cognizable in federal habeas corpus, and the Court has found no error
in this conclusion. Additionally, the Court addressed Petitioner’s variations on these
claims, including Petitioner’s argument that the entry of the nunc pro tunc order without
him being present at a hearing was a violation of his right to due process (Doc. 81,
Page ID # 1586); and the entry of the nunc pro tunc order amounts to a new judgment
which resulted in a violation of due process, a violation of the Ex Post Facto Clause,
and a double jeopardy violation (Doc. 116, PageID # 1887-1890).

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Petitioner’s current motion relies on Ohio Revised Code § 2929.191(C), which
requires that a hearing be conducted before a nunc pro tunc entry is journalized to
correct a sentence that fails to impose a term of post-release control according to
certain statutory requirements. 1 Petitioner previously relied upon Ohio Revised Code §
2929.191(C) in these proceedings to argue that the Court of Common Pleas was
required to hold a hearing with him physically present instead of entering its nunc pro
tunc order on July 2, 2015 in his absence. Petitioner now argues that Ohio Revised
Code § 2929.191(C) does not authorize a nunc pro tunc order to correct the trial court’s
failure to impose post-release control as to each offense. Petitioner argues that instead,
a judge must consider each offense individually and impose a separate sentence for
each offense. Petitioner argues that “prior to the 2015 nunc pro tunc my sentences
were void for counts two and three offenses of my conviction because my [individual]
sentences did not include post release control for my two offense convictions –
weapons while under disability and felonious assault.” (Doc. 107, PageID # 1790).

1Ohio

Revised Code § 2929.191(C) provides: “On or after July 11, 2006, a court that
wishes to prepare and issue a correction to a judgment of conviction of a type described in
division (A)(1) or (B)(1) of this section shall not issue the correction until after the court has
conducted a hearing in accordance with this division.” Division (A)(1) of the section applies
where the trial court fails to notify the offender that he will be subject to post-release control after
the offender leaves prison or the trial court's failure to include a statement to that effect in the
sentencing entry. Division (B)(1) applies where the trial court fails to notify the offender
“regarding the possibility of the parole board imposing a prison term for a violation of
supervision or a condition of postrelease control or to include in the judgment of conviction
entered on the journal a statement to that effect.”
The Court notes that during the resentencing hearing on August 21, 2013, Petitioner was
present, and the trial court informed Petitioner that after he leaves prison, he would be subject
to five years of post-release control. (Doc. 10-1, PageID # 907). The trial court also informed
Petitioner that the parole board may impose a prison term if he violates supervision or a
condition of post-release control. (Doc. 10-1, PageID # 908). The Court also notes that these
statements were included in the August 21, 2013 sentencing entry (Doc. 10, PageID # 114) and
the nunc pro tunc entry on July 2, 2015 (Doc. 10, PageID # 117).
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Petitioner explains that this retrospective imposition of post-release control violated the
Ex Post Facto Clause.
As the Magistrate Judge explained, a motion under Federal Rule of Civil
Procedure 60(b) may be treated as a second or successive habeas petition if necessary
to enforce the requirements of the AEDPA. See Gonzalez v. Crosby, 545 U.S. 524,
531–32, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). A Rule 60(b) motion is a second or
successive habeas petition if it asserts a federal basis for relief from the state court's
judgment of conviction by seeking to add a new ground for relief, or attacking the
federal court's previous resolution of a claim on the merits. Tyler v. Anderson, 749 F.3d
499, 506–507 (6th Cir. 2014). In this context, the term “on the merits” refers “to a
determination that there exist or do not exist grounds entitling the petitioner to habeas
corpus relief under 28 U.S.C. §§ 2254(a) and (d).” Id. at 507 (quoting Gonzalez, 545
U.S. at 532 n. 4, 125 S.Ct. 2641). “A habeas petitioner’s filing that seeks vindication of
such a claim is, if not in substance a ‘habeas corpus application,’ at least similar enough
that failing to subject it to the same requirements would be ‘inconsistent with’ the
statute.” Id. (quoting Gonzalez, 545 U.S. at 531, 125 S.Ct. 2641).
The Court concludes that Petitioner’s motion for “Relief Upon Newly-Acquired
Evidence for Guaranteed Immediate Release through this Ex Post Facto Prohibition
Motion” (Doc. 107) reasserts the substance of his claim and therefore constitutes an
impermissible attack on the Court’s previous resolution of the claims on the merits. See
Henderson v. Collins, 184 Fed. Appx. 518, 523 (6th Cir. 2006). Therefore, Petitioner’s
motion is a “second or successive” habeas petition within the meaning of 28 U.S.C. §

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2244(d). Petitioner was required to obtain authorization from the Sixth Circuit before he
could file a new habeas petition.
Based on the foregoing, Petitioner’s objections (Doc. 111, 115) to the Magistrate
Judge’s June 29, 2018 Transfer Order (Doc. 108) are OVERRULED. Accordingly, it is
hereby ORDERED that:
1. This matter is TRANSFERRED to the Sixth Circuit Court of Appeals for that
court’s consideration of whether or not to grant permission to proceed; and
2. This matter remains CLOSED and TERMINATED from the active docket of this
Court.
IT IS SO ORDERED.
/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT

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