Foster v. Erdos
Decision Date | 16 March 2018 |
Docket Number | Case No. 1:15-cv-713 |
Parties | CHRISTOPHER FOSTER, Petitioner, v. RONALD ERDOS, WARDEN, Southern Ohio Correctional Facility, Respondent. |
Court | U.S. District Court — Southern District of Ohio |
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 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).
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 post-release 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). Butnothing 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.
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