Foster v. Warden, Toledo Correctional Institution

Filing 180

ORDER ADOPTING REPORT AND RECOMMENDATIONS - Petitioner's 165 Motion for Relief from Judgment under Fed.R.Civ.P. 60(b) is DENIED; A certificate of appealability shall not issue with respect to the claims alleged in the petition, which this Cour t has concluded are procedurally barred from review because under the first prong of the applicable two-part standard enunciated in Slack v. McDaniel, 529 U.S. 473, 48485 (2000), "jurists of reason" would not find it debatable whethe r this Court is correct in its procedural ruling; With respect to any application by petitioner to proceed on appeal in forma pauperis, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal of this Order adopting the Report and Recommendation would not be taken in "good faith," and, therefore, petitioner is DENIED leave to appeal in forma pauperis upon a showing of financial necessity. This matter remains CLOSED and TERMINATED from the active docket of this Court. Signed by Judge Michael R. Barrett on 9/18/2023. (kkz)(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 October 25, 2022
Report and Recommendation (“R&R”). (Doc. 166). The Magistrate Judge recommends
denying Petitioner’s Motion for Relief from Judgment under Fed.R.Civ.P. 60(b) (Doc.
165).
The parties were given proper notice under Rule 72(b) of the Federal Rules of
Civil Procedure, including notice that the parties would waive further appeal if they failed
to file objections to the R&R in a timely manner. See United States v. Walters, 638 F.2d
947, 949-950 (6th Cir. 1981). Petitioner filed timely objections to the R&R. (Doc. 167).
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).
When objections to a magistrate judge’s report and recommendation are received on a
dispositive matter, the assigned district judge “must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P.
72(b)(3).

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 brings this habeas corpus action pursuant to 28 U.S.C. § 2254. On
July 24, 2017, this Court adopted the Magistrate Judge’s R&Rs and dismissed
Petitioner’s case with prejudice. (Doc. 81). In 2019, Petitioner filed a New Retroactive
Motion to Alter. (Doc. 129). However, upon the recommendation of the Magistrate
Judge, this Court found the motion untimely under Federal Rule of Civil Procedure
59(e); or alternatively, the Court found that if the motion was considered pursuant to
Federal Rule of Civil Procedure 60(b)(2) and (c), the motion was barred by the AEDPA’s
one-year statute of limitations. (Doc. 143).
In his current motion pursuant to Rule 60(b), Petitioner claims that this Court
improperly dismissed his case in 2017 without considering Castro v. United States, 540
U.S. 375, 375, 124 S. Ct. 786, 788, 157 L. Ed. 2d 778 (2003).

However, as the

Magistrate Judge explained in his R&R, Petitioner’s motion is untimely under Rule
60(c). The Magistrate Judge also noted that Petitioner filed this case as habeas case
under 28 U.S.C. § 2254, but then later attempted to bring claims based on prison
conditions under 42 U.S.C. § 1983.
In his objections, Petitioner challenges the Magistrate Judge’s application of
Castro to his case. Petitioner argues that he has demonstrated diligence because he
brought his claim challenging his prison conditions as soon as he had access to the law
library or other materials necessary for bringing his claim. Petitioner makes a number of
other arguments which seem to be related to other litigation brought by him. See Foster
v. Henderson, No. 2:23-CV-947, 2023 WL 3764566, at *5-6 (S.D. Ohio June 1, 2023)

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(describing similar claims made by Petitioner and outlining the history of Petitioner’s
various claims), report and recommendation adopted 2023 WL 5443895 (S.D. Ohio
Aug. 24, 2023). 1
In Castro, the Supreme Court held that when a court recharacterizes a pro se
litigant's motion as a first § 2255 motion, “the district court must notify the pro se litigant
that it intends to recharacterize the pleading, warn the litigant that this recharacterization
means that any subsequent § 2255 motion will be subject to the restrictions on ‘second
or successive’ motions, and provide the litigant an opportunity to withdraw the motion or
to amend it so that it contains all the § 2255 claims he believes he has.” 540 U.S. at
383. The application of Castro to Petitioner’s case is largely irrelevant because as the
Magistrate Judge noted, Petitioner’s motion is untimely under the one-year limitation
period of Rule 60(c). Petitioner acknowledges a five-year delay in filing his motion and
explains that he did not have access to the law library until February of 2020. (Doc.
165, PAGEID 2217). However, he has not provided an explanation for the delay since
that time.
Based on the foregoing, the Magistrate Judge’s October 25, 2022 R&R (Doc.
166) is ADOPTED. Accordingly, it is hereby ORDERED that:
1. Petitioner’s Motion for Relief from Judgment under Fed.R.Civ.P. 60(b) (Doc. 165)
is DENIED;
2. A certificate of appealability shall not issue with respect to the claims alleged in
the petition, which this Court has concluded are procedurally barred from review
because under the first prong of the applicable two-part standard enunciated in
Slack v. McDaniel, 529 U.S. 473, 484–85 (2000), “jurists of reason” would not
find it debatable whether this Court is correct in its procedural ruling;

1This

Court also recognized that Petitioner has been designated as a “three-striker” under the
federal Prison Litigation Reform Act, and as a vexatious litigator under Ohio law. 2023 WL 3764566, *6.

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3. With respect to any application by petitioner to proceed on appeal in forma
pauperis, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
of this Order adopting the Report and Recommendation would not be taken in
“good faith,” and, therefore, petitioner is DENIED leave to appeal in forma
pauperis upon a showing of financial necessity. See Fed. R. App. P. 24(a);
Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997); and
4. 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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