Foster v. Warden, Toledo Correctional Institution

Filing 166

REPORT AND RECOMMENDATIONS - Foster's Motion for Relief from Judgment under Fed.R.Civ.P. 60(b)(ECF No. 165) should be denied. Because reasonable jurists would not disagree with this conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in forma pauperis. Objections to R&R due by 11/8/2022. Signed by Magistrate Judge Michael R. Merz on 10/25/2022. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 1:15-cv-00713-MRB-MRM Doc #: 166 Filed: 10/25/22 Page: 1 of 3 PAGEID #: 2227

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.

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner’s Motion for Relief from
Judgment under Fed.R.Civ.P. 60(b)(ECF No. 165). As a post-judgment motion, it is deemed
referred to the Magistrate Judge under 28 U.S.C. § 636(b)(3) for a report and recommendations.
Rather than making a new habeas corpus claim, the motion attacks the correctness of this
Court’s judgment and is thus properly decided by this Court and not transferred to the Sixth Circuit
as a second or successive habeas petition under Gonzalez v. Crosby, 545 U.S. 524 (2005).
As best the Magistrate Judge understands it, Foster claims the Court erred in dismissing
his case on July 24, 2017 (ECF No. 81) without giving him an opportunity to decide on a proper
characterization of the case under Castro v. United States, 540 U.S. 375 (2003), where the Supreme
Court held:
A federal court cannot recharacterize a pro se litigant's motion as a
first § 2255 motion unless it first informs the litigant of its intent to
recharacterize, warns the litigant that this recharacterization means
that any subsequent § 2255 motion will be subject to the restrictions
1

Case: 1:15-cv-00713-MRB-MRM Doc #: 166 Filed: 10/25/22 Page: 2 of 3 PAGEID #: 2228

on "second or successive" motions, and provides the litigant an
opportunity to withdraw the motion or to amend it so that it contains
all the § 2255 claims he believes he has. If these warnings are not
given, the motion cannot be considered to have become a § 2255
motion for purposes of applying to later motions the law's "second
or successive" restrictions.
Id. at 377. The evident purpose of that ruling was to prevent the bar on second or successive
motions to vacate under 28 U.S.C. § 2255 to bar such a motion where the defendant had not chosen
to proceed under § 2255. Foster asks that we vacate the 2017 judgment, allow him to choose
whether he wishes to proceed under 28 U.S.C. § 2254 or 42 U.S.C. § 1983 as to allegedly
unconstitutional prison conditions.
Castro does not counsel granting Foster’s Motion. In the first place, it is grossly untimely.
It is filed multiple times beyond the one-year limit in Fed.R.Civ.P. 60(c) for most motions under
Fed.R.Civ.P. 60(b). It is not filed within a reasonable time under Fed.R.Civ.P. 60(b(6) in that
Castro has been available as precedent since before this case was dismissed.
Substantively, it was Foster in the first instance who characterized this as a habeas corpus
case. He is the one who attempted to add prison conditions questions toward the end of the case.
This Court did not err in holding, given Preiser v. Rodriquez, 411 U.S. 475 (1973), that Foster
could not add prison condition claims to his original Petition.

Conclusion

Foster’s Motion should be denied. Because reasonable jurists would not disagree with this
conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that
the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not

2

Case: 1:15-cv-00713-MRB-MRM Doc #: 166 Filed: 10/25/22 Page: 3 of 3 PAGEID #: 2229

be permitted to proceed in forma pauperis.

October 25, 2022.
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. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. 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. 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.
s/ Michael R. Merz
United States Magistrate Judge

3