Foster v. Warden Lebanon Correctional Institution
REPORT AND RECOMMENDATION that 64 MOTION for Relief from Judgment re 52 Clerk's Judgment be TRANSFERRED to the Sixth Circuit Court of Appeals as a successive petition pursuant to 28 U.S.C §2244(b). Objections to R&R due by 5/9/2017. Signed by Magistrate Judge Terence P. Kemp on 4/25/2017. (agm)(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
WILLIAM A. FOSTER,
CASE NO. 2:09-CV-00214
CHIEF JUDGE EDMUND A. SARGUS, JR.
MAGISTRATE JUDGE KEMP
TIM BRUNSMAN, WARDEN,
REPORT AND RECOMMENDATION
Petitioner has filed a Motion for Relief from Judgment from this Court’s June 22, 2011,
Judgment (ECF No. 52) dismissing the instant petition for a writ of habeas corpus pursuant to 28
(ECF No. 64.)
For the reasons that follow, the Magistrate Judge
RECOMMENDS that the Motion for Relief from Judgment (ECF No. 64) be TRANSFERRED
to the Sixth Circuit Court of Appeals as a successive petition pursuant to 28 U.S.C. § 2244(b).
Petitioner challenges his April 2007 convictions after a jury trial in the Franklin County
Court of Common Pleas on aggravated murder and having a weapon while under disability. On
appeal, the state appellate court amended the aggravated murder conviction to murder. See State
v. Foster, No. 07AP-419, 2007 WL 4171110 (Ohio App. 10th Dist. Nov. 27, 2007). In this
habeas corpus petition, Petitioner asserts that the evidence was constitutionally insufficient to
sustain his conviction and that his conviction was against the manifest weight of the evidence
(claim one); that he was denied the effective assistance of trial counsel (claims two and four);
and that he was denied a fair trial based on prosecutorial misconduct (claim three). Petitioner
also claims that he is actually innocent and that this case constitutes a manifest miscarriage of
justice. On June 22, 2011, the Court dismissed claims one and two as without merit, and claims
three and four as procedurally defaulted. On May 20, 2016, the Court denied Petitioner’s motion
for reconsideration of the dismissal of claims three and four pursuant to Rule 60(b) of the Federal
Rules of Civil Procedure. Opinion and Order (ECF No. 63.)
Petitioner now again seeks reconsideration of the final judgment of dismissal of this
action. In support of his motion for reconsideration, Petitioner argues that the Ohio Court of
Appeals illegally remanded his case for re-sentencing on the offense of felony murder, acting
beyond the scope of its jurisdiction. Therefore, Petitioner argues, he remains illegally in the
custody of the Respondent, because he was not indicted on or convicted of the offense of felony
murder, which does not constitute a lesser included offense of aggravated murder, the offense of
Although Petitioner designates his Motion for Relief from Judgment under Rule 60(b) of
the Federal Rules of Civil Procedure, he has raised a new claim for relief. However, federal
district courts lack jurisdiction to consider new claims raised in a successive or second habeas
corpus petition absent preauthorization from the relevant Court of Appeals. See Franklin v.
Jenkins, 839 F.3d 465, 473 (6th Cir. 2016)(citing 28 U.S.C. § 2244(b)(3); Burton v. Stewart, 549
U.S. 147, 149 (2007)(per curiam)). Therefore, because Rule 60(b) motions “may not be used as
vehicles to circumvent the limitations that Congress has placed upon the presentation of claims
in a second or successive application for habeas relief,” Moreland v. Robinson, 813 F.3d 315,
322-23 (6th Cir. 2016)(citing Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005), the Court must
determine whether Petitioner’s motion is “a ‘true’ Rule 60(b) motion or simply a ‘second or
successive’ habeas application cloaked in Rule 60(b) garb.” Franklin v. Jenkins, 839 F.3d at 473
(quoting Gonzalez, 545 U.S. at 531).
“[F]or the purposes of § 2244(b) an ‘application’ for habeas relief
is a filing that contains one or more ‘claims.’ ” Gonzalez, 545 U.S.
at 530. A § 2244(b) claim is “an asserted federal basis for relief
from a state court's judgment of conviction.” Id. A movant is not
making a habeas claim when he seeks only to lift the procedural
bars that prevented adjudication of certain claims on the merits. Id.
at 532 n.4. But he is making a habeas claim when he seeks to add a
new ground for relief or seeks to present “new evidence in support
of a claim already litigated.” Id. at 531-32.
813 F.3d at 322-23.
Here, Petitioner seeks to add a new ground for relief. He asserts that the state appellate
court acted beyond its jurisdiction and improperly remanded the case to the trial court for resentencing on felony murder. Because Petitioner presents a new ground for relief, his Motion for
Relief from Judgment constitutes a successive habeas corpus petition. Gonzalez, 545 U.S. at 532.
Therefore, this Court lacks jurisdiction to adjudicate the claim absent precertification for the
filing of the successive petition from the United States Court of Appeals for the Sixth Circuit.
See Henness v. Jenkins, No. 2:14-cv-2580, 2017 WL 749198, at *7 (S.D. Ohio Feb. 27,
2017)(citations omitted). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
a district court lacks jurisdiction to entertain a successive petition for writ of habeas corpus in the
absence of an order from the court of appeals authorizing the filing of such successive petition.
28 U.S.C. § 2244(b); Nelson v. United States, 115 F.3d 136 (2nd Cir. 1997); Hill v. Hopper, 112
F.3d 1088 (11th Cir. 1997). Unless the court of appeals has given approval for the filing of a
second or successive petition, a district court in the Sixth Circuit must transfer the petition to the
Sixth Circuit Court of Appeals. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997)(per curiam).
Therefore, the Magistrate Judge RECOMMENDS that the Motion for Relief from
Judgment (ECF No. 64) be TRANSFERRED to the Sixth Circuit Court of Appeals as
successive pursuant to 28 U.S.C. § 2244(b).
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A judge of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence or may
recommit this matter to the magistrate judge with instructions. 28 U.S.C. 636(B)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse
decision, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.
/s/ Terence P. Kemp
United States Magistrate Judge
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