Foster v. Warden, Toledo Correctional Institution

Filing 158

TRANSFER ORDER - Accordingly, pursuant to In re Sims, 111 F.3d 45 (6th Cir. 1997), the Clerk is ordered to transfer the instant Motion to the United States Court of Appeals for the Sixth Circuit for its consideration of whether to permit Foster to pr oceed. re 157 filed by Christopher Foster. Signed by Magistrate Judge Michael R. Merz on 7/20/21. (pb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification, and COA TEAM 2)

Case: 1:15-cv-00713-MRB-MRM Doc #: 158 Filed: 07/21/21 Page: 1 of 3 PAGEID #: 2177

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.

TRANSFER ORDER

This habeas corpus case is before the Court on Petitioner’s most recent motion for relief
from judgment pursuant to Fed.R.Civ.P. 60(b)(6), docketed by the Clerk as “Emergency
Retroactive Presentation” (ECF No. 157).
In deciding whether a motion to vacate or modify a habeas judgment is a second or
successive habeas application, a district court must consider whether it raises a new claim about
the underlying state court judgment or instead attacks the integrity of the federal court judgment.
In Gonzalez v. Crosby, 545 U.S. 524 (2005), the Supreme Court held that a Rule 60(b) motion
presents a “claim” if it seeks to add a new ground for relief from the state conviction or attacks the
federal court’s previous resolution of a claim on the merits, though not if it merely attacks a defect
in the federal court proceedings’ integrity. Gonzalez involved an attack on the district court’s prior
statute of limitations decision on the basis of later Supreme Court law (Artuz). The Court held this
was a proper use of Rule 60(b) and the district court could reach the motion on the merits without

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precertification by the court of appeals.
In his instant Motion, Foster seeks the retroactive application to this case of the decision in
Torres v. Madrid, ___ U.S. ___, 141 S. Ct. 989, 209 L. Ed. 2d 190 (2021). In that case the Supreme
Court held application of physical force to the body of a person with intent to restrain is Fourth
Amendment seizure even if the person does not submit and is not subdued and in this case officers
seized suspect for the instant that the bullets struck her, despite the fact that she temporarily eluded
capture. Foster further asserts Torres states a new substantive rule of constitutional law and is
therefore retroactively applicable to cases pending on collateral review (Motion, ECF No. 157,
PageID 2162).
Foster argues he could not, without the Torres decision, articulate why his counsel was
ineffective for failure to file a motion to suppress or how his Fourth Amendment rights were
violated. Id. at PageID 2163.
Upon examination, the Petition in this case does not include a claim of ineffective
assistance of appellate counsel for failure to raise a claim of ineffective assistance at the trial level
for trial counsel’s failure to file a motion to suppress or a Fourth Amendment claim pure and
simple. The claims made in the instant Motion are therefore new attacks on the underlying
criminal judgment.

This Court has no jurisdiction to consider those claims without prior

certification from the circuit court. Burton v. Stewart, 549 U.S. 147 (2007); Franklin v. Jenkins,
839 F.3d 465(6th Cir. 2016).
Accordingly, pursuant to In re Sims, 111 F.3d 45 (6th Cir. 1997), the Clerk is ordered to
transfer the instant Motion to the United States Court of Appeals for the Sixth Circuit for its
consideration of whether to permit Foster to proceed.

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Case: 1:15-cv-00713-MRB-MRM Doc #: 158 Filed: 07/21/21 Page: 3 of 3 PAGEID #: 2179

IT IS SO ORDERED.

July 20, 2021.
s/ Michael R. Merz
United States Magistrate Judge

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