Foster v. Warden, Toledo Correctional Institution

Filing 184

REPORT AND RECOMMENDATIONS re 183 MOTION for Rule 60(b) Relief filed by Christopher Foster. The Magistrate Judge Recommends that the motion for relief from judgment should be denied. Objections to R&R due by 1/10/2024. Signed by Magistrate Judge Michael R. Merz on 12/27/2023. (jmb)(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.

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner’s Motion for Rule 60(b) Relief
(ECF No. 183). Petitioner does not specify a subsection of Rule 60, so the Court interprets his
Motion as made under Fed.R.Civ.P. Rule60(b)(6), as a motion under any other subsection would
be untimely.
Petitioner’s stated ground for relief is that the Court’s procedural default ruling at ECF No.
41 as to Ground One is erroneous on the basis of new evidence Foster acquired in November 2023,
to wit, Exhibit 1. The referenced document is the November 17, 2016, Order of the undersigned
which makes no procedural default finding.
In the instant Motion, Foster asserts he has a claim under Brady v. Maryland, 373 U.S. 83
(1963), that the prosecution withheld exculpatory evidence and a further claim that his appellate
attorney would not raise this Brady claim on direct appeal.
Foster attaches as Exhibit 1 a letter dated November 15, 2023, from Christine Jones who

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acted as Foster’s appellate attorney, responding to a November 7, 2023, letter from Foster
apparently discussing an officer-involved shooting and comments by a chief of police. No
underlying documents are supplied. Also attached is an August 2021 letter from civil rights
attorney Alphonse Gerhardstein declining a proffered representation from Mr. Foster. None of
this material shows that Foster has ever had a viable claim under Brady.
Therefore the motion for relief from judgment should be denied.

December 27, 2023.
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

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