Foster v. Warden, Toledo Correctional Institution

Filing 94

ORDER adopting Report and Recommendation re 85 Report and Recommendation denying 83 Motion. Signed by Judge Michael R. Barrett on 3/5/18. (ba)(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 August 14, 2017
Report and Recommendation (“R&R”) that Petitioner’s “Motion for Relief from an Order
(Doc. 81) Filed Based on Excusable Neglect and Inadvertence to the Merits” be denied.
(Doc. 85).
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. 86,

87). In addition, Petitioner filed a Notice entitled “Good Faith Thank You to the Court.”
(Doc. 93).
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 adopting the Magistrate Judge’s R&Rs and dismissed
Petitioner’s case with prejudice. Petitioner brings his current motion pursuant to Federal
Rule of Civil Procedure 60(b)(1) and (6), which provides:
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following
reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
...
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
Petitioner’s arguments center primarily on Petitioner’s claim that his sentence is
unconstitutional because the state court entered an order nunc pro tunc which altered
his sentence. However, as this Court previously ruled in its July 24, 2017 Order (Doc.
81), Petitioner’s claim is an alleged violation of state law which does not rise to the level
of a constitutional violation. Accord Floyd v. Alexander, 148 F.3d 615, 619 (6th Cir.
1998) (“while the trial court may have violated Ohio Criminal Rule 43 in entering the
nunc pro tunc order changing Floyd's sentence from concurrent to consecutive
sentences in his absence, this error does not rise to a ‘fundamental miscarriage of
justice’ or constitute a violation of procedural due process of law. Floyd has alleged a

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violation of a state law that is not cognizable in a federal habeas corpus proceeding.”).
In his Notice, Petitioner raises the case of Crangle v. Kelly, 838 F.3d 673 (6th Cir.
2016). However, the issue in Crangle was whether the entry of a nunc pro tunc order
that imposed post-release control was a new sentence that resets the limitations clock
under § 2244(d)(1)(A). Id. at 677. The timeliness of Petitioner’s claim is not at issue in
this case. Instead, the question is whether Petitioner has set forth grounds for relief
which are cognizable in habeas corpus. Therefore, it was not error for the Magistrate
Judge to conclude that Petitioner was not entitled to relief pursuant to Rule 60(b).
Based on the foregoing, the Magistrate Judge’s August 14, 2017 R&R (Doc. 85)
is ADOPTED. Accordingly, it is hereby ORDERED that:
1. Petitioner’s “Motion for Relief from an Order (Doc. 81) Filed Based on Excusable
Neglect and Inadvertence to the Merits” (Doc. 85) is DENIED; and
2. 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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