Foster v. Warden, Toledo Correctional Institution

Filing 162

TRANSFER ORDER - This habeas corpus case is before the Court on Petitioners most recent motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b)(6)(ECF No re 160 - 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. Signed by Magistrate Judge Michael R. Merz on 11/2/21. (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 [e-mail] by Electronic Notification Modified on 11/2/2021 (pb).

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)(ECF No. 160).
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
precertification by the court of appeals.

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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)(ECF No. 160, PageID
2180). This is the same claim Foster made in his prior motion for relief under Fed.R.Civ.P.
60(b)(6)(ECF No. 157). This Court ordered the prior motion transferred to the Sixth Circuit for
its determination under 28 U.S.C. § 2244 (ECF No. 158). The case remains pending under Sixth
Circuit Case No. 21-3674.

This Court lacks subject matter jurisdiction to consider second or

successive habeas petitions without permission from the circuit court. Burton v. Stewart, 549 U.S.
147 (2007); Franklin v. Jenkins, 839 F.3d 465(6th Cir. 2016). If a purported motion for relief from
judgment attacks the conviction rather than the district court’s judgment, it should be transferred
to the circuit court for permission to file. United States v. Alford, Case No. 11-4067 (6th Cir. Nov.
12, 2013)(unreported, copy at 3:00-cr-065, Doc. No. 156), citing Gonzalez v. Crosby, 545 U.S.
524 (2005), and In re Sims, 111 F.3d 45 (6th Cir. 1997).
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.
IT IS SO ORDERED.

November 2, 2021.
s/ Michael R. Merz
United States Magistrate Judge

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