Foster v. Warden, Toledo Correctional Institution

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 	Report 	and
Recommendations (“R&R”) filed on March 31, 2025, July 3, 2025 and September 25,
2025. (Docs. 203, 213, 217). In these three R&Rs, the Magistrate Judge recommends:
(1) denying Petitioner’s Motion for Rule 60 Relief filed on March 7, 2025 (Doc. 202); (2)
denying Petitioner’s Corrected Motion for Rule 60(b)(6) Relief filed on June 30, 2025
(Doc. 	210); 	(3) 	and 	denying 	Petitioner’s 	Motion 	for 	Relief 	from 	Judgment 	under
Fed.R.Civ.P. 60(b) filed on September 24, 2025 (Doc. 216).
The Magistrate Judge 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 	Petitioner 	should 	not 	be 	permitted 	to 	proceed 	in 	forma
pauperis.
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
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947, 949-950 (6th Cir. 1981). 	Petitioner filed timely objections to the R&Rs. 	(Docs.
208, 214, 218).
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 brought this habeas corpus action pursuant to 28 U.S.C. § 2254. 	On
July 	24, 	2017, 	this 	Court 	adopted 	the 	Magistrate 	Judge’s 	R&Rs 	and 	dismissed
Petitioner’s case with prejudice. (Doc. 81). Since that time, Petitioner has filed multiple
motions for relief from judgment or to amend the judgment. 	There are now three
additional Rule 60 motions for relief pending before the Court.
The first motion (Doc. 202) is centered on Petitioner’s argument that the State
Court Record filed with this Court and furnished to him under Federal Rule of Civil
Procedure 5 contains an incomplete transcript. 	However, as the Magistrate Judge
points out, not only is his Rule 60 motion untimely,1 but the transcript of the closing
arguments and the jury charge were not relevant to this Court’s judgment. 	(Doc. 203,
PAGEID 2465).
1
A Rule 60(b)(1) motion must be filed “within a reasonable time -- and for reasons (1),
(2), and (3) no more than a year after the entry of judgment or order or the date of the
proceeding.” Fed. R. Civ. P. 60(c)(1).
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In the second motion (Doc. 210), Petitioner states that he has discovered some
“Ohio Revised Code § 2945.371(K) evidence” and claims that false testimony about his
competence was presented at trial. 	However, as the Magistrate Judge points out,
Petitioner has not explained what the evidence is, how it supports his motion, or shown
that he was convicted based on false testimony. (Doc. 213, PAGEID 2498-99).
In 	the 	third 	motion 	(Doc. 	216), 	Petitioner 	explains 	that 	he 	relied 	on 	the
prosecution’s statement that he was under no duty to testify; and he was unaware—until
recently—that he was under the influence of drugs. 	The Magistrate Judge determined
that Petitioner was not seeking Rule 60(b) relief in this third motion, but was instead
attempting to file a second or successive habeas petition. 	However, the Magistrate
Judge concluded that this motion does not constitute a second or successive habeas
petition under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28
U.S.C. § 2244(b), and therefore Petitioner was not required to “move in the appropriate
court of appeals for an order authorizing the district court to consider” a second or
successive habeas application. 	See 28 U.S.C. § 2244(b)(3)(A). 	After reviewing his
claim, the Magistrate Judge concluded that Petitioner has not provided proof of his
actual innocence. (Doc. 217, PAGEID 2526).
In his objections, Petitioner explains that in 2024 he discovered that when he
testified at his underlying criminal trial, he was “high out of his mind” as the result of
being prescribed pain medication. 	(Doc. 208, PAGEID 2477). 	In addition, Petitioner
explains that the statements he made at trial were false and he made the statements
because he was intoxicated. 	(Doc. 214, PAGEID 2500). 	Petitioner provides a medical
record showing a prescription from 2016 (Doc. 208-1) but does not explain its relevance
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to his testimony during the trial, which took place in 2012. 	Petitioner also claims that
contrary to Ohio Revised Code § 2945.371(K), statements he made relating to his
competence to stand trial were used against him at trial. 	(Doc. 214, PAGEID 2500).
However, Petitioner does not provide a citation to the record to support this claim and
based upon the Court’s review of the transcript, his competence was not raised at trial.
(See Doc 10-1).
As 	the 	Magistrate 	Judge 	explained, 	a 	motion 	under 	Federal 	Rule 	of 	Civil
Procedure 60(b) may be treated as a second or successive habeas petition if necessary
to enforce the requirements of the AEDPA. See Gonzalez v. Crosby, 545 U.S. 524,
531–32, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). 	However, as the Sixth Circuit has
explained:
not all petitions filed second in time are “second or successive.” 	And
when a “numerically second petition” is not “second or successive,” it isn't
“subject to the restrictions of 28 U.S.C. § 2244(b).” In re Bowen, 436 F.3d
699, 705–06 (6th Cir. 2006); In re Hanna, 987 F.3d 605, 608 (6th Cir.),
cert. denied sub nom. Hanna v. Shoop, ––– U.S. ––––, 142 S. Ct. 246,
211 L.Ed.2d 111 (2021). 	So there are two kinds of second-filed petitions:
numerically second petitions that are not “second or successive” and
numerically second petitions that are “second or successive.”
In re Hill, 81 F.4th 560, 568 (6th Cir. 2023). “A second-in-time petition is not considered
second or successive when (1) the second petition challenges a new state-court
judgment; (2) the proposed claim would have been unripe at the time of the original
petition; or (3) the proposed claim was not decided on the merits because it was
dismissed as unexhausted.” In re Gutierrez, No. 23-2004, 2024 WL 3333932, at *1 (6th
Cir. Apr. 11, 2024), cert. denied sub nom. Gutierrez v. Miniard, 145 S. Ct. 261, 220 L.
Ed. 2d 78 (2024) (citing In re Hill, 81 F.4th at 568-69; In re Coley, 871 F.3d 455, 457
(6th Cir. 2017)).
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Here, Petitioner raises a new claim challenging an old judgment that was not
raised previously. 	However, if the predicates for the claim had already occurred at the
time that the first petition or motion was filed—even if they were not known to the
Petitioner—the subsequent petition is second or successive. See In re Wogenstahl, 902
F.3d 621, 627-28 (6th Cir. 2018). 	Petitioner’s claim is based on newly discovered
evidence that he was “high out of his mind” on pain medication at the time of trial, but
that “claim has always been ripe because the factual predicates for the claim occurred
at trial.” 	In re Hill, 81 F.4th at 572; see also Jenkins v. Chambers-Smith, No. 1:25-CV-
00254-JRK, 	2025 	WL 	3274424, 	at 	*6 	(N.D. 	Ohio 	Nov. 	25, 	2025), 	report 	and
recommendation adopted, 2026 WL 37550 (N.D. Ohio Jan. 6, 2026) (explaining that
because the petitioner’s claims are based on the events that occurred at trial--that the
petitioner did not comprehend the proceedings, was made to sit in his own urine, and
was incompetent to stand trial—those claims challenge the events of the trial and have
“always been ripe.”) (quoting In re Hill, 81 F.4th at 572).
Therefore, Petitioner must meet the gatekeeping provisions of § 2244(b)(2).2 It is
for the Sixth Circuit, not this Court to determine whether Petitioner has satisfied these
requirements. 	Asadi-Ousley v. Sloan, No. 1:24-CV-01906-CAB, 2025 WL 2940678, at
2
Section 2244(b)(2) provides that claims not presented in a prior habeas petition shall be
dismissed from a second or successive petition unless:
(A) the applicant shows that the claim relies on a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as
a whole, would be sufficient to establish by clear and convincing evidence that,
but for constitutional error, no reasonable factfinder would have found the
applicant guilty of the underlying offense.
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*5 (N.D. Ohio Sept. 10, 2025), report and recommendation adopted, 2025 WL 3635765
(N.D. Ohio Dec. 15, 2025).
Based on the foregoing, the Court OVERRULES Petitioner’s Objections (Docs.
208, 214, 218); and the Magistrate Judge’s R&Rs filed on March 31, 2025 and July 3,
2025 	(Docs. 	203, 	213) 	are 	ADOPTED. 	The 	Court 	DECLINES 	to 	ADOPT 	the
Magistrate 	Judge’s 	September 	25, 	2025 	R&R 	(Doc. 	217) 	to 	the 	extent 	that 	it
recommends that Petitioner’s Motion (Doc. 216) is not a second or successive habeas
petition under 28 U.S.C. § 2244(b). Accordingly, it is hereby ORDERED that:
1. 	Petitioner’s Motion for Rule 60 Relief filed on March 7, 2025 (Doc. 202) is
DENIED;
2. 	Petitioner’s Corrected Motion for Rule 60(b)(6) Relief filed on June 30, 2025
(Doc. 210) is DENIED;
3. 	Petitioner’s Motion for Relief from Judgment under Fed.R.Civ.P. 60(b) filed on
September 24, 2025 (Doc. 216) is TRANSFERRED to the Sixth Circuit Court of
Appeals for that court’s consideration of whether or not to grant permission to
proceed on the claim; and
4. 	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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