United States District Court, S.D. Ohio, Eastern Division
WILLIAM A. FOSTER, Petitioner,
TIM BRUNSMAN, WARDEN, Respondent.
MAGISTRATE JUDGE KEMP
OPINION AND ORDER
A SARGUS, JR. Chief United States District Judge
April 25, 2017, the Magistrate Judge issued a Report and
Recommendation recommending that Petitioner's
Motion for Relief from Judgment (ECF No. 52) be
transferred to the United States Court of Appeals for the
Sixth Circuit as a successive petition pursuant to 28 U.S.C.
§ 2244(b). (ECF No. 65.) Petitioner has filed an
Objection to the Magistrate Judge's Report
and Recommendation. (ECF No. 68.) Pursuant to 28 U.S.C.
§ 636(b), this Court has conducted a de novo
review. For the reasons that follow, Petitioner's
Objection (ECF No. 68) is OVERRULED. The Report
and Recommendation (ECF No. 65) is ADOPTED and
AFFIRMED. The Motion for Relief from Judgment (ECF
No. 52) is TRANSFERRED to the Sixth Circuit Court of Appeals
as a successive petition.
seeks reconsideration of the Court's June 11, 2011,
Judgment of dismissal of his petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner
argues that the Ohio Court of Appeals illegally remanded his
case for re-sentencing on the offense of felony murder,
acting beyond the scope of its jurisdiction. Because this
constitutes a new claim for relief, the Magistrate Judge
recommended that the motion be transferred to the Sixth
Circuit Court of Appeals for authorization for filing as a
successive petition. See Gonzalez v. Crosby, 545
U.S. 524, 531-32(2005).
objects to the Magistrate Judge's recommendation.
Petitioner maintains that his motion may properly be
considered under the provision of Rule 60(b) of the Federal
Rules of Civil Procedure, because he raises an issue
regarding the state appellate court's alleged lack of
subject matter jurisdiction, which he inadvertently
overlooked when he filed his habeas corpus petition, and
which issue, he contends, may be raised at any time.
Petitioner also disputes the characterization of his Rule
60(b) motion as raising a new claim for relief. Petitioner
asserts that the transfer of this case to the Court of
Appeals as successive will violate the Suspension Clause.
Petitioner seeks a certificate of appealability.
as discussed by the Magistrate Judge, this Court lacks
jurisdiction to consider new claims raised by a Petitioner in
a Rule 60(b) motion.
A petitioner's Rule 60(b) motion is a "second or
successive" habeas application "when it 'seeks
vindication of or 'advances' one or more
'claims.' " Post v. Bradshaw, 422 F.3d
419, 424 (6th Cir. 2005) (quoting Gonzalez, 545 U.S.
at 531-32, 125 S.Ct. 2641). A "claim, " in turn,
"is 'an asserted federal basis for relief from a
state court's judgment of conviction.' "
Ibid, (quoting Gonzalez, 545 U.S. at 530,
125 S.Ct. 2641).
For example, a habeas petitioner's Rule 60(b) motion
advances claims "when [the petitioner] seeks to add a
new ground for relief or seeks to present 'new evidence
in support of a claim already litigated.' "
Moreland, 813 F.3d at 322 (quoting
Gonzalez, 545 U.S. at 531, 125 S.Ct. 2641). By
contrast, a petitioner does not seek to advance new claims
"when [his] motion 'merely asserts that a previous
ruling which precluded a merits determination was in
error-for example, a denial for such reasons as failure to
exhaust, procedural default, or statute-of-limitations
bar.' " Post, 422 F.3d at 424 (quoting
Gonzalez, 545 U.S. at 532 n.4, 125 S.Ct. 2641).
Franklin v. Jenkins, 839 F.3d 465, 473
(6th Cir. 2016). Petitioner's assertion that
the appellate court acted beyond the scope of its authority,
or lacked jurisdiction, constitutes such a "new
claim" for relief. See, e.g., Purnell v. United
States, 496 Fed.Appx. 596, 600-601, unpublished, 2012 WL
3667994 (6th Cir. Aug. 27, 2012)(Rule 60(b) motion
raising issue regarding the District Court's dismissal of
claims regarding the lack of subject matter jurisdiction
constitutes successive petition). Further, the United States
Supreme Court has rejected Petitioner's claim that the
limits imposed under the Antiterrorism and Effective Death
Penalty Act ("AEDPA") on the filing of successive
petitions violates the Suspension Clause. See Alley v.
Bell, 392 F.3d 822, 833 (6th Cir.
2004)(citing Felker v. Turpin, 518 U.S. 651, 664
has requested a certificate of appealability. "In
contrast to an ordinary civil litigant, a state prisoner who
seeks a writ of habeas corpus in federal court holds no
automatic right to appeal from an adverse decision by a
district court." Jordan v. Fisher, __ U.S.__.
__, 135 S.Ct. 2647, 2650 (2015); 28 U.S.C. §
2253(c)(1)(requiring a habeas petitioner to obtain a
certificate of appealability in order to appeal.) The
petitioner must establish the substantial showing of the
denial of a constitutional right. 28 U.S.C. §
2253(c)(2). This standard is a codification of Barefoot
v. Estelle, 463 U.S. 880 (1983). Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (recognizing
codification of Barefoot in 28 U.S.C. §
2253(c)(2)). To make a substantial showing of the denial of a
constitutional right, a petitioner must show "that
reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a
different manner or that the issues presented were
'adequate to deserve encouragement to proceed
further.'" Slack, 529 U.S. at 484 (quoting
Barefoot, 463 U.S., at 893 n. 4).
has failed to meet this standard here. Petitioner's
motion plainly constitutes a successive petition. Reasonable
jurists would not debate whether the Court properly
transferred the motion as a successive petition.
Petitioner's Objection (ECF No. 68) is
OVERRULED. The Report and Recommendation (ECF No.
65) is ADOPTED and AFFIMED. The Motion for Relief from
Judgment (ECF No. 52) is TRANSFERRED to the Sixth
Circuit Court of Appeals as a successive petition.
Petitioner's request for a certificate of appealability