Foster v. Warden, Toledo Correctional Institution

Filing 121

ORDER MOTION FOR CERTIFICATE OF APPEALABILITY- Therefore Petitioners Motion for Certificate of Appealability is DENIED. Signed by Magistrate Judge Michael R. Merz on 1/14/19. (kma)(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
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

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

ORDER MOTION FOR CERTIFICATE OF APPEALABILITY

This habeas corpus case is before the Court on Petitioner’s Combined Notice of Appeal
and Motion for Certificate of Appealability (ECF No. 119, 120) as to District Judge Barrett’s
Orders of December 27, 2018 (ECF Nos. 117, 118).
The first of these Orders (ECF No. 116) adopted Magistrate Judge Reports and
Recommendations (ECF Nos. 97 and 105) without modification. Both of those Reports contained
recommendations that a certificate of appealability be denied. Therefore the request for a
certificate of appealability as to ECF No. 116 is moot because a certificate has already been denied
by Judge Barrett’s adoption of the underlying Reports.
The second of these Orders (117) overruled Petitioner’s Objections to the Magistrate
Judge’s Transfer Order (ECF No. 108) which transferred to the Sixth Circuit as a second or
successive habeas corpus application Petitioner’s motion for “Relief Upon Newly-Acquired
Evidence for Guaranteed Immediate Release through this Ex Post Facto Prohibition Motion (ECF
No. 107). Petitioner requires no certificate of appealability on the Transfer Order as it is already
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before the Sixth Circuit as a result of Judge Barrett’s decision. Should the Sixth Circuit decide the
transfer was improper, it will, in all probability, transfer the case back to this Court upon reversing
its determination that the referenced motion is a second or successive habeas application.
Therefore Petitioner’s Motion for Certificate of Appealability is DENIED.
January 14, 2019.
s/ Michael R. Merz
United States Magistrate Judge

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