United States District Court, S.D. Ohio, Western Division, Cincinnati
REPORT AND RECOMMENDATION ON MOTION TO
Michael R. Barrett, District Judge
Michael R. Merz, United States Magistrate Judge
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
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
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
GROUND TWO: Unlawful Restraint by
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
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).
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 ...