Foster v. Warden, Toledo Correctional Institution

Filing 97

REPORT AND RECOMMENDATIONS ON MOTIONS FOR RECONSIDERATION - Foster's two Motions for reconsideration 95 96 do not persuade the Magistrate Judge that this Court's judgment is in error. It is therefore respectfully recommended that they be denied. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 3/30/2018. Signed by Magistrate Judge Michael R. Merz on 3/16/2018. (kpf)(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 ON MOTIONS FOR
RECONSIDERATION

This habeas corpus case is before the Court on Petitioner’s Good Faith Request to Court
(ECF No. 95) and Motion for Reconsideration of the Subject Matter Jurisdiction (ECF No. 96).
Petitioner requests that there not be any more reports and recommendations in his case
(ECF No. 95, PageID 1669). But Judge Barrett already entered final judgment in the case (ECF
No. 81, 82). These two motions are therefore post-judgment motions which are deemed referred
to an assigned Magistrate Judge under Fed. R. Civ. P. 72(b)(3) and require a report and
recommendations.
These Motions were filed too late to be considered under Fed. R. Civ. P. 59(e) as a motion
to alter the judgment and therefore must be considered as a motion for relief from judgment under
Fed. R. Civ. P. 60(b)(1). This is the same basis on which the Court considered Foster’s prior
Motion for Relief from an Order (ECF No. 81).
Fed. R. Civ. P. 60(b) (1) provides “[o]n motion and upon such terms as are just, the court

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may relieve a party or a party’s legal representative from a final judgment, order, or proceeding
for the following reasons (1) mistake, inadvertence, surprise, or excusable neglect;” Rule 60(b)(1)
“is intended to provide relief in only two situations: (1) when a party has made an excusable
mistake or an attorney has acted without authority, or (2) when the judge has made a substantive
mistake of law or fact in the final judgment or order.” United States v. Reyes, 307 F.3d 451, 455
(6th Cir. 2002).In order to be eligible for relief under 60(b)(1) the movant must demonstrate the
following: (1) The existence of mistake, inadvertence, surprise, or excusable neglect. (2) That he
has a meritorious claim or defense. Marshall v. Monroe & Sons, Inc., 615 F.2d 1156, 1160 (6th
Cir. 1980), citing Ben Sager Chemicals International, Inc. v. E. Targosz & Co., 560 F.2d 805, 808
(7th Cir. 1977); Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir. 1970); Central Operating
Company v. Utility Workers of America, 491 F.2d 245 (4th Cir. 1973). Determinations made
pursuant to Fed. R. Civ. P. 60(b) are within the sound discretion of the court and will not be
disturbed on appeal unless the court has abused its discretion. Yeschick v. Mineta, 675 F.3d 622,
628 (6th Cir. 2012); H. K. Porter Co., Inc. v. Goodyear Tire and Rubber Co., 536 F.2d 1115, 1119
(6th Cir. 1976); Smith v. Kincaid, 249 F.2d 243, 245 (6th Cir. 1957).
In the first Motion (ECF No. 95), Foster asserts the judgment on which he is confined, a
2013 nunc pro tunc Entry (State Court Record, ECF No. 10, PageID 110-18), was somehow
beyond the subject matter jurisdiction of the Common Pleas Court to enter. Examination of the
record shows that Entry was made pursuant to remand from the First District Court of Appeals.
That court found
Foster is correct, however, that the trial court erred when it failed to
make the necessary findings under [Ohio Revised Code] §
2929.14(C)(4) before imposing consecutive terms of incarceration.
***

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In sum, we vacate the consecutive terms of incarceration imposed in
this case. This cause is remanded to the trial court for it to consider
whether the imposition of consecutive sentences is warranted under
R.C. 2929.14(C), and, if so, to make the appropriate findings. In all
other respects, including the individual terms of incarceration
imposed on each count, the trial court's judgment is affirmed.
State v. Foster, Case No. C-120411 (1st Dist. June 12, 2013)(unreported; copy at State Court
Record, ECF No. 10, PageID 93-95). The Entry makes an order about service of the prison terms
consecutively and also memorializes a post-release control term of five years as a mandatory term
of sentence. However, the original judgment in the case also memorializes a mandatory five-year
term of post-release control (State Court Record, ECF No. 10, PageID 59). Any claimed error
regarding post-release control in this first judgment entry was not raised on direct appeal.
Foster argues that because this new nunc pro tunc entry imposes a “worse-than-before”
sentence, it somehow runs afoul of Crangle v. Kelly, 838 F.3d 673 (6th Cir. 2016), which holds a
new judgment, at least if it imposes a worse than before sentence by imposing post-release control
in lieu of parole, resets the statute of limitations clock. 838 F.3d at 677, followed in Brown v.
Harris, 2018 U.S. Dist. LEXIS 31483 (S.D. Ohio Feb. 27, 2018). Crangle is irrelevant to Foster’s
claims, none of which were held barred by the statute of limitations. Moreover, mandatory postrelease control has always been a part of Foster’s sentence in this case.
Contrary to Foster’s assertion, the United States Constitution does not forbid use of a nunc
pro tunc entry to correct an Ohio felony sentence to impose a mandatory term of post-release
control. Foster is correct in arguing that the nunc pro tunc entry constitutes a new judgment which
would take the instant case outside the prohibition on second or successive habeas petitions if
Foster had a prior habeas application. Magwood v. Patterson, 561 U.S. 320 (2010); King v.
Morgan, 807 F.3d 154, 156 (6th Cir. 2015); In re Stansell, 828 F.3d 412 (6th Cir. 2016). But

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nothing this Court has done in this case categorized the case as second or successive and therefore
subject to 28 U.S.C. § 2244(b). Stansell holds that a new judgment such as the nunc pro tunc entry
resets the statute of limitations, but this Court has never held Foster’s claims are barred by the
statute of limitations.
Foster argues that the amendment of his judgment of conviction violates the Double
Jeopardy Clause (Motion, ECF No. 95, PageID 1670). Foster made no such claim in his Petition,
so the Court’s judgment cannot be in error for failing to consider that claim. Moreover, the claim
is without merit. No court has held that correction of an omission to recite reasons for imposing
consecutive sentences, corrected on remand on direct appeal, somehow violates the Double
Jeopardy Clause. Foster cites United States v. Kyles, 601 F.3d 78 (2nd Cir. 2010), but that is not
the holding in Kyle; instead, the Second Circuit found that permitting the Bureau of Prisons to
amend a restitution schedule was an impermissible delegation of judicial power to an
administrative agency. Nothing of the kind is involved here; Judge Kubicki was at the time a judge
of the Hamilton County Court of Common Pleas and not an agent of the Ohio Department of
Corrections, the Ohio state analogue to the federal Bureau of Prisons.
The balance of Foster’s first Motion is devoted to cataloguing the ways in which he claims
his conditions of confinement at the Southern Ohio Correctional Facility are unconstitutional. As
the Court has previously advised him, conditions of confinement claims must be brought in a
separate civil rights action under 42 U.S.C. § 1983. A habeas court is limited to considering
whether the judgment on which a prisoner is confined is constitutional.
In his second Motion, Foster requests reconsideration of his subject matter jurisdiction
claim (ECF No. 96, PageID 1690). He now says Crangle, supra, is not the case he intends to rely
on, but Kusay v. United States, 62 F.3d 192 (7th Cir. 1995). In that case, a district court had held

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a hearing on a § 2255 motion collaterally attacking Kusay’s conviction but before the mandate had
issued to return jurisdiction to the district court. To avoid a jurisdictional conflict between the two
courts, the Government had suggested that the court of appeals issue its mandate nunc pro tunc to
a date before the district court acted. Declining that suggestion, the Seventh Circuit held
This suggestion betrays lack of understanding not only of the office
of nunc pro tunc orders but also of this court's recent cases, which
have disparaged efforts to use such orders to rewrite history. "This
phrase--literally 'now for then'--refers to situations in which the
court's records do not accurately reflect its actions. When the error
comes to light, the court corrects the file to show what actually
happened." In re Singson, 41 F.3d 316, 318 (7th Cir. 1994). The
power to correct erroneous records does not imply ability to revise
the substance of what transpired or to back-date events. See In re
Jarvis, 53 F.3d 416, 418-19 n.2 (1st Cir. 1995); King v. Ionization
International, Inc., 825 F.2d 1180, 1188 (7th Cir. 1987); United
States v. Taylor, 841 F.2d 1300, 1305 (7th Cir. 1988). Cf. United
States v. Caswell, 36 F.3d 29, 31 (7th Cir. 1994). The United States
does not ask us to correct records to show what happened; it wants
us to change history. Incantation of Latin phrases does not bestow
such an Orwellian power. We must decide whether the district judge
had jurisdiction given the state of affairs when it acted.
62 F.3d at 193.
Kusay deals with (1) when it is proper to use a nunc pro tunc entry in the federal court
system and (2) the rule that a federal district court may not act on a case while it is on appeal.
Neither of those rules is expressed as a rule of federal constitutional law. The state courts are free
to vary from those practices as they see fit without offending the federal Constitution. Here
Foster’s case was remanded to the Hamilton County Court of Common Pleas to correct an error,
so there was no exercise of trial and appellate jurisdiction over the same case at the same time. It
is correct that the new judgment entry does not fit the definition of a nunc pro tunc entry given in
Kusay, but that definition is not constitutionally mandated. Even if Kusay were a constitutional

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decision, it is obviously not a decision of the United States Supreme Court, and only that Court’s
decisions clearly establish federal law for habeas corpus purposes. See 28 U.S.C. § 2254(d).

Conclusion

Foster’s two Motions for reconsideration do not persuade the Magistrate Judge that this
Court’s judgment is in error. It is therefore respectfully recommended that they be denied.
Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a
certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would
be objectively frivolous and therefore should not be permitted to proceed in forma pauperis.

March 16, 2018.
s/ Michael R. Merz
United States Magistrate Judge

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. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days
because this Report is being served by mail. .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.
If the Report and Recommendations are based in whole or in part upon matters occurring of record
at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or
such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless
the assigned District Judge otherwise directs. 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. See United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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