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Foster v. Erdos

United States District Court, S.D. Ohio, Western Division, Cincinnati

March 10, 2017

CHRISTOPHER FOSTER, Petitioner,
v.
RONALD ERDOS, WARDEN, Southern Ohio Correctional Facility, Respondent.

          REPORT AND RECOMMENDATION ON MOTION TO DISMISS

          Michael R. Barrett, District Judge

          Michael R. Merz, United States Magistrate Judge

         This habeas corpus case under 28 U.S.C. § 2254 is before the Court on Respondent's Motion to Dismiss the Petition (ECF No.52). The Motion was filed January 17, 2017 in Case No. 1-16-cv-846 and the docket number changed when the cases were consolidated.

         Under S. D. Ohio Civ. R. 7.2, Petitioner has twenty-four days to file a memorandum in opposition or until February 10, 2017. As of the date of this Report, he has not filed anything in opposition.

GROUND ONE: Double Jeopardy Clause
Supporting Facts: Problems of Double Jeopardy arise when the court acts on its own motion. Wouldn't it be a strange rule which deprived a judge of power to do what was asked when request was made by the person most concerned, and yet allowed him to act without petition. If a condition of the power is that request for its exercise be not made, serious constitutional issues would be raised. For it is such actions which obviate any later objection the defendant might make on the ground of double jeopardy.
GROUND TWO: Unlawful Restraint by Retroactivity.
Supporting Facts: A direct appeal was filed after a remand for resentencing was held in the trial court in 2013. 23 months later than the resentencing directly appealed and denied, the judgment of conviction on its third entry was finalized retroactively without lawful authority of a court to do so.
GROUND THREE: Ex-Post Facto Clause Violation.
Supporting Facts: Due process . . . does not countenance an unforeseeable and retroactive judicial expansion of narrow and precise statutory language. The Ex Post Facto Clause limits the powers of the legislature and does not of its own force apply to judicial decision making. The judgment of conviction change affected my substantial personal rights and not just modes of procedure which do not affect matters of substance.
GROUND FOUR: 5th Constitutional Amendment of the United States in violation.
Supporting Facts: No person shall be subject for the same offence to be twice put in jeopardy of life or limb; Nor shall be compelled in any criminal case to be a witness against himself nor be deprived of life, liberty or property without due process of law.

(Quoted at Motion, ECF No. 52, PageID 1470-71).

         Respondent's Motion analyzes these four Grounds for Relief as all raising the same claim, to wit, that it was error for the Common Pleas Court to correct the judgment entry to reflect that Mr. Foster was ...


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