IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

KENT C. FOSTER, 

Petitioner, 

CASE NO. 2:11-cv-00133

v. JUDGE MICHAEL H. WATSON

 Magistrate Judge Kemp

WARDEN, CHILLICOTHE

CORRECTIONAL INSTITUTION,

Respondent.

 

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, has filed an “Application for an Alternative Writ for a

Rule Nisi for a Lawful Determination of Petitioner’s Legal Status.” The Court, for reasons

described below, will treat the application as a petition for a writ of habeas corpus filed

under 28 U.S.C. §2254. Based on that construction, this matter is before the Court to

conduct an initial screening as required by Rule 4 of the Rules Governing Section 2254

Actions in the United States District Courts. For the reasons that follow, the Magistrate

Judge RECOMMENDS that this action be DISMISSED as time-barred. 

I.

Petitioner is, according to his application, currently confined at the Chillicothe

Correctional Institution. Paperwork attached to his application indicates that criminal

charges were brought against him in Belmont County, Ohio in 1991. He has provided the

Court with a portion of a docket sheet from Case No. 91-CR-073 from Belmont County

indicating that an indictment was returned in that case on May 2, 1991, charging him with

multiple criminal offenses. He has not supplied any other information about the

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disposition of his case.

In his application, petitioner invokes 28 U.S.C. §1651, the All Writs Act, as the basis

for relief. He appears to argue that he is not in the lawful custody of the State of Ohio, for

reasons not entirely clear, but apparently having to do with the fact that he does not believe

that a valid judgment was ever entered in his state court criminal case. He seeks, among

other relief, a declaration that he is not a “prisoner” and that the remedy of a writ of habeas

corpus, which may be obtained by “a person in custody pursuant to the judgment of a State

court,” see 28 U.S.C. §2254, is not available to him. He also asks the Court “to issue a rule

nisi to Respondent to produce and show the true and lawful cause of Petitioner’s detention

in a state institution,” claiming that all of the exhibits showing that criminal proceedings

occurred in Belmont County are “legal nullities.” Application, Doc. #2, at 2-3.

II.

 28 U.S.C. §2244(d)(1) states in pertinent part:

A 1-year period of limitation shall apply to an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a State court. The

limitation period shall run from ... the date on which the judgment became

final by the conclusion of direct review or the expiration of the time for

seeking such review.

For the following reasons, the Court concludes that this limitations provision applies to

petitioner’s request for relief, and bars it because it was filed well after the limitations

period expired.

In this case, the Court’s research shows that petitioner was convicted in the Belmont

County Court of Common Pleas in 1991 of two counts of rape, one count of gross sexual

imposition, and one count of felonious sexual penetration. He was sentenced to an

indefinite term of imprisonment of ten to twenty-five years on each of the rape counts and

received the same sentence on the felonious sexual penetration conviction. On the final

charge, he received a definite sentence of two years. All of the sentences were run

consecutively. See State v. Foster, 1994 WL 149881 (Belmont Co. App. April 12, 1994). In the

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cited decision, the state court of appeals affirmed the convictions and sentences, and it does

not appear that petitioner pursued any further direct appeal. He did file an action in

prohibition in the Belmont County Court of Appeals in 2004, which was dismissed on

procedural grounds, see State ex rel. Foster v. Belmont County Court of Common Pleas, 107

Ohio St. 3d 195 (2005), but the filing of that action has no impact on the limitations analysis,

as explained below.

Because petitioner’s conviction became final, for purposes of the statute of

limitations, prior to April 24, 1996, the effective date of §2244(d)(1), the statute of

limitations began to run on that date. As explained in Jurado v. Burt, 337 F.3d 638, 649 (6th

Cir. 2003), petitioner had one year from the effective date of the statute, or until April 24,

1997, to file a timely habeas corpus petition in this Court. He did not do so, and this case

would therefore be time-barred unless some other reason exists to excuse petitioner’s

compliance with the applicable statute of limitations.

As an effort to avoid the effect of the statute of limitations, petitioner claims that he

is not pursuing relief under 28 U.S.C. §2254 but that he is proceeding under the All Writs

Act, 28 U.S.C. §1651. However, it is clear that if the Court were to grant him any relief,

including a declaration that the judgment of the state court under which he is being held

is a nullity, the effect of that decision would be to release him from state custody.

Consequently, his remedy in federal court is appropriately and only a writ of habeas

corpus. 

The Court reaches this conclusion because a state prisoner seeking release may

proceed only under §2254 because it covers the specific situation of a person in state

custody asking a federal court for relief. The All Writs Act is available only in those

situations where no other federal statute covers the situation at hand. See Pennsylvania

Bureau of Correction v. United States Marshals Serv., 474 U.S. 34, 43 (1985) . As the court

observed in Owens v. Boyd, 235 F.3d 356, 360 (7th Cir. 2000), a case which, like this one,

involved a claim which would be time-barred if presented under §2254,

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[Petitioner] believes that he can avoid §2244(d)(1) by recharacterizing his

petition as a request for habeas corpus under 28 U.S.C. §2241 or coram nobis

under the All-Writs Act, 28 U.S.C. §1651(a). Not so. Section 2244(d)(1) applies

to every “application for a writ of habeas corpus by a person in custody

pursuant to the judgment of a State court.” It does not distinguish between

applications under §2241 and those under §2254. Anyway, as the Supreme

Court observed in Felker v. Turpin, 518 U.S. 651, 662, 116 S.Ct. 2333, 135

L.Ed.2d 827 (1996), and we reiterated in Walker v. O'Brien, 216 F.3d 626, 633

(7th Cir.2000), every collateral attack by a state prisoner on a final judgment

of conviction necessarily depends on §2254. It is not possible to escape its

limitations by citing some other statute. 

Petitioner appears to claim, however, that he is not restricted to (and perhaps may

not even take advantage of) 28 U.S.C. §2254 because the state court proceedings to which

he was subjected did not produce a valid judgment. See Petitioner’s Application, Doc. #1,

at 2 (“petitioner is not in custody pursuant to a judgment of a state court” because he was

not “lawfully charged according to Ohio law and the U.S. Constitution, but by invalid

procedure”). As the Court of Appeals said in Frazier v. Moore, 252 Fed. Appx. 1, **4 (6th Cir.

October 7, 2007), such an argument is not “convincing.” In rejecting a similar argument, the

Court of Appeals (affirming a decision from this Court, see Frazier v. Moore, 2006 WL

3146436 (S.D. Ohio Oct 31, 2006)), held that ”[t]he fact that the state court judgment may

have been procured in violation of state or federal law does not, however, render the

judgment null under §2244(d).” Id. at **5. Rather, 

In order to constitute a “judgment” under §§2244(d) and 2254, a state court

judgment need not be unassailable, or even prima facie correct. If a judgment

that was procured by a procedure that violated federal constitutional rights

were sufficient to render a petitioner not in custody “pursuant to the

judgment of a state court” for the purpose of §§2244(d) and 2254, then the

habeas regime embodied in these provisions would be substantially

undermined.

Id. Thus, it does not matter, for purposes of determining if the statute of limitations has

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run, that petitioner claims to be in custody pursuant to a defective, void, or illegal

judgment rendered by a state court. The fact remains that this claim had to be brought

within one year of the date on which the judgment became final and non-appealable, or,

as in this case, within one year of the effective date of 28 U.S.C. §2244(d)(1).

As noted, the Court’s research has also revealed that petitioner sought to challenge

the state court judgment, apparently on similar grounds, through an action for a writ of

prohibition which he filed in 2004. That action was ultimately dismissed by the Ohio

Supreme Court on December 7, 2005, and petitioner did not seek any relief in federal court

within one year of that date. Even if he had, the prohibition action was not filed within a

year of April 24, 1996, so that it could not have had any impact on the running of the statute

of limitations, which expired on April 24, 1997, well before petitioner sought any relief in

the state court. See Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003). Thus, there does not

appear to be any reason not to apply the statute of limitations found in §2244(d)(1) to

petitioner’s application, or to find that his application was timely filed.

III.

For all of these reasons, the Court concludes that this action is time-barred. It is

therefore recommended that the petition be dismissed on grounds that it was not filed

within the time permitted by 28 U.S.C. §2244(d)(1).

 PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within

fourteen (14) days of the date of this report, file and serve on all parties written objections

to those specific proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge of this Court shall make

a de novo determination of those portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper objections, a judge of this Court

may accept, reject, or modify, in whole or in part, the findings or recommendations made

herein, may receive further evidence or may recommit this matter to the magistrate judge

with instructions. 28 U.S.C. §636(b)(1).

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The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a waiver of the right to appeal the

decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn,

474 U.S. 140 (1985);United States v. Walters, 638 F.2d 947 (6th Cir.1981). 

The parties are further advised that, if they intend to file an appeal of any adverse

decision, they may submit arguments in any objections filed, regarding whether a

certificate of appealability should issue. 

/s/ Terence P. Kemp __

United States Magistrate Judge

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