Barker v. Warden, London Correctional Institution

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
KEVIN J. BARKER,
Petitioner, 	: 	Case No. 3:19-cv-00067
- vs - 	District Judge Walter H. Rice
Magistrate Judge Michael R. Merz
NORM ROBINSON, Warden,
London Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This is a habeas corpus case, brought by Petitioner Kevin Barker to obtain relief from his
conviction and a sentence imposed in the Common Pleas Court of Montgomery County, Ohio, for
various prostitution-related offenses. 	The case is before the Court on Petitioner’s pro se
Emergency Motion For Relief From Judgment Pursuant To Fed. R. Civ. P. 60(b)(1), (4), and
(6)(“Emergency Motion,” ECF No. 40).
Although sometimes a Rule 60(b) motion has been characterized as a second or successive
habeas corpus petition requiring permission from the circuit court under 28 U.S.C. § 2244(b) to
proceed, this Emergency Motion is not a second-or-successive petition because it seeks to correct
what it claim is an error in the Court’s original judgment in this case. That is a proper use of Rule
60(b) without satisfying § 2244(b). See Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).
Petitioner claims the prior judgment rested on “a procedural defect: the failure to treat
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Petitioner's 2016 resentencing as a "new judgment" and to afford one full merits review of
constitutional claims challenging that new Judgment.” (Emergency Motion, ECF No. 40, PageID
259).
The first branch of this claim is based on a false premise. The Court did in fact treat the
re-sentencing as embodied in a “new judgment.” The undersigned Magistrate Judge to whom the
case continues to be referred, wrote Petitioner did not need circuit permission to proceed
because the Common Pleas Court entered an amended termination
entry on February 7, 2017. State v. Barker, 2nd Dist. Montgomery
No. CA 27472, 2018-Ohio-2044 ¶ 6. A second-in-time petition is
not second or successive when it follows an intervening judgment.
King v. Morgan, 807 F.3d 154, 155-56 (6th Cir. 2015). This Court
therefore has jurisdiction to adjudicate this new Petition. Franklin v.
Jenkins, 839 F.3d 465(6th Cir. 2016); Burton v. Stewart, 549 U.S.
147 (2007).
(Report and Recommendations of March 6, 2019, ECF No. 3, PageID 38). The Report than recited
Barker’s eight grounds for relief and recommended that they all be dismissed, either because they
were procedurally defaulted or because the state court decision rejecting them was entitled to
deference under 28 U.S.C. § 2254(d)(1). Judge Rice adopted1 this Report on September 24, 2019
(ECF No. 17). This Court and the Sixth Circuit denied a certificate of appealability (ECF Nos. 35,
36).
The second part of Barker’s claim in his Emergency Motion is that the Court’s prior
judgment deprived him unconstitutionally of “one full merits review of the new judgment.”
(Emergency Motion, ECF No. 40, PageID 260). 	For that proposition, he cites Magwood v.
Patterson, 561 U.S. 320 (2010); Crangle v. Kelly, 838 F.3d 673 (6th Cir. 2016); and King v.
1 The judge accepted Barker’s objection that, contrary to the Report’s conclusion, he had adequately pleaded his
“claims concerning the sufficiency of the indictment, the jury instructions, and the conviction on unindicted "other
bad acts" are included in Grounds Two and Three of the Petition.” Judge Rice nevertheless concluded this error did
not affect the outcome of the case (Decision and Entry, ECF No. 17, PageID 127).
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Morgan, 807 F.3d 154 (6th Cir. 2015). None of these cases stand for that proposition. Instead,
they all allow a second-in-time habeas petition to proceed after a re-start of the statute of
limitations. None of them require a State to forego its ordinary defenses of a conviction as, for
example, res judicata. Judge Karen Nelson Moore’s denial of a certificate of appealability in this
case supports that proposition. She wrote:
The district court rejected Barker’s first claim on the merits because
it raised only an issue of state law. Barker argued that the State erred
in finding that claims he had not raised in his original appeal but
raised after his resentencing were barred by res judicata. Barker
relied on Magwood v. Patterson, 561 U.S. 320, 342 (2010), and
King v. Morgan, 807 F.3d 154, 157 (6 th Cir. 2015), which held that
a federal habeas corpus petition filed after a resentencing is not a
second or successive petition. But those cases say nothing about
whether the State of Ohio is required to abandon its res judicata rules
after resentencing. Barker was still required to show that his claims
were not procedurally defaulted in the state courts. King, 807 F.3d
at 160. Reasonable jurists would not find the district court’s
assessment that this claim was an issue of state law only debatable.
(Order, ECF No. 36, PageID 250-51). 	In other words, review on the merits does not mean the
Court must overlook the State’s defenses. The complained-of judgment resulted from this Court’s
review on the merits. Therefore Petitioner’s Emergency Motion is completely without merit.
Not only is the Emergency Motion without merit; it is also procedurally deficient. 	Mr.
Barker purports to bring his motion under Fed.R.Civ.P. 60(b)(1), (b)(4), and (b)(6). Barker does
not explain how his claim comes within 60(b)(1), but any (b)(1) claim must be brought within one
year of the complained-of judgment. Fed.R.Civ.P. 60(c). Judgment was entered here September
24, 2019, substantially more than six years before the Emergency Motion was filed on March 6,
2026. Barker also does not explain how the judgment is void or give any other reason that justifies
relief.
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Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends the
Emergency Motion be denied. Because reasonable jurists would not disagree with this conclusion,
it is also recommended that Petitioner be denied a certificate of appealability and that the Court
certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be
permitted to proceed in forma pauperis.
March 9, 2026.
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. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. 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. 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. 
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