Foster v. Warden, Toledo Correctional Institution

Filing 195

ORDER ADOPTING REPORT AND RECOMMENDATIONS - The Court OVERRULES 193 Petitioner's Objections and ADOPTS the 192 Magistrate Judge's February 13, 2024 R&R. Accordingly, it is hereby ORDERED that the 191 Petitioner's Motion to Recomm it is DENIED. This 185 Court's Order denying Petitioner's Motion for Rule 60(b) Relief is hereby VACATED. Because 183 Petitioner's Motion for Rule 60(b) Relief presents a second or successive habeas petition, the Clerk is ordered to TRANSFER the Motion to the Sixth Circuit as required under 28 U.S.C. § 2244(b)(3) for consideration of whether Petitioner may proceed with his Brady claim; This matter remains CLOSED and TERMINATED from the active docket of this Court. Signed by Judge Michael R. Barrett on 3/6/2024. (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 February 13, 2024
Report and Recommendation (“R&R”). (Doc. 192). The Magistrate Judge recommends
(1) vacating the Order denying Petitioner’s Motion for Relief from Judgment (Doc. 185);
and (2) upon a finding that the Motion for Relief from Judgment presents a second or
successive habeas petition, transferring this case to the Sixth Circuit Court of Appeals
for a determination of whether Petitioner may proceed with his Brady claim.
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. 193).
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).

several collateral attacks on the judgment.

Since that time, Petitioner has made
Most recently, on December 11, 2023,

Petitioner filed a Motion for Relief from Judgment under Federal Rule of Civil Procedure
60(b). (Doc. 183). The Magistrate Judge entered an R&R recommending the denial of
the Motion for Relief from Judgment.

(Doc. 184).

The R&R was adopted without

objection on January 16, 2024. (Doc. 185). That same day, Petitioner’s objections to
the R&R were docketed. (Doc. 186). Petitioner then filed his Motion to Recommit
Objection (Doc. 191) explaining that his objections were not untimely under the prison
mailbox rule.
In his February 13, 2024 R&R, the Magistrate Judge does not recommend
recommitting the case because the objections do not establish that Petitioner is entitled
to relief from judgment. The Magistrate Judge explains that in his Motion for Relief from
Judgment, Petitioner presents a new claim under Brady v. Maryland, 373 U.S. 83
(1963): the prosecution withheld exculpatory evidence and his attorney refused to raise
this claim on direct appeal. Because Petitioner presents, or attempts to present, this
new claim attacking the constitutionality of his conviction, the Magistrate Judge
recommends transferring Petitioner’s Motion for Relief from Judgment to the Sixth

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Circuit Court of Appeals for its determination on whether or not he may proceed under
28 U.S.C. § 2244(b). 1
The Court finds that the Magistrate Judge properly recommended transferring
Petitioner’s Motion for Relief from Judgment to the Sixth Circuit.

If a second or

successive petition is filed in the district court without § 2244(b)(3) authorization from
the court of appeals, the district court may dismiss for want of jurisdiction or “shall, if it is
in the interest of justice, transfer such action . . . to any other such court in which the
action ... could have been brought at the time it was filed.” 28 U.S.C. § 1631; In re
Sims, 111 F.3d 45, 47 (6th Cir. 1997) (“when a prisoner has sought § 2244(b)(3)
permission from the district court, or when a second or successive petition for habeas
corpus relief or § 2255 motion is filed in the district court without § 2244(b)(3)
authorization from this court, the district court shall transfer the document to this court
pursuant to 28 U.S.C. § 1631.”).
Based on the foregoing, the Court OVERRULES Petitioner’s Objections (Doc.
193); and the Magistrate Judge’s February 13, 2024 R&R (Doc. 192) is ADOPTED.
Accordingly, it is hereby ORDERED that:
1. Petitioner’s Motion to Recommit (Doc. 191) is DENIED;
2. This Court’s Order denying Petitioner’s Motion for Rule 60(b) Relief (Doc. 185) is
hereby VACATED;
3. Because Petitioner’s Motion for Rule 60(b) Relief (Doc. 183) presents a second
or successive habeas petition, the Clerk is ordered to TRANSFER the Motion to
the Sixth Circuit as required under 28 U.S.C. § 2244(b)(3) for consideration of
whether Petitioner may proceed with his Brady claim; and
The Court notes that Petitioner has made the same Brady claim as part of a new
petition filed in a different division of this Court: Foster v. Warden, No. 2:23-CV-3519-EAS-KLL.
The Magistrate Judge presiding over that case has also recommending transferring the petition
to the Sixth Circuit Court of Appeals for consideration. See Foster v. Warden, No. 2:23-CV3519, 2023 WL 8372811, at *4 (S.D. Ohio Dec. 4, 2023).
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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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