                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0354n.06

                                            No. 11-3923
                                                                                         FILED
                            UNITED STATES COURT OF APPEALS                           Apr 10, 2013
                                 FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk


KENT C. FOSTER,                                       )
                                                      )
       Petitioner-Appellant,                          )
                                                      )
v.                                                    )      ON APPEAL FROM THE UNITED
                                                      )      STATES DISTRICT COURT FOR
WARDEN CHILLICOTHE                                    )      THE SOUTHERN DISTRICT OF
CORRECTIONAL INSTITUTION,                             )      OHIO
                                                      )
       Respondent-Appellee.                           )
                                                      )



       Before: MARTIN and SUTTON, Circuit Judges; HOOD, District Judge.*


       PER CURIAM. Kent C. Foster, an Ohio prisoner represented by counsel, appeals a district

court judgment dismissing his “Application for an Alternative Writ for a Rule Nisi for a Lawful

Determination of Petitioner’s Legal Status,” construed as a petition for a writ of habeas corpus filed
under 28 U.S.C. § 2254. The parties have waived oral argument, and we unanimously agree that oral

argument is not needed. Fed. R. App. P. 34(a).

       In 1991, a jury convicted Foster of two counts of rape, one count of gross sexual imposition,

and one count of felonious sexual penetration. He was sentenced to ten to twenty-five years of

imprisonment on each of the rape counts and the felonious sexual penetration conviction, and two

years of imprisonment for the gross sexual imposition conviction, with the sentences to run



       *
       The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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consecutively. The Ohio Court of Appeals affirmed. See State v. Foster, No. 91-B-17, 1994 WL

149881 (Ohio Ct. App. Apr. 12, 1994). Foster did not pursue any further appeal.

       On February 14, 2011, Foster filed a document entitled “Application for an Alternative Writ

for a Rule Nisi for a Lawful Determination of Petitioner’s Legal Status,” seeking to invoke the

district court’s jurisdiction under 28 U.S.C. § 1651. He sought to have the district court issue an

order requiring the respondent to produce proof of the “lawful cause of Petitioner’s detention in a

state institution.” Foster argued that, pursuant to federal and Ohio law, he was not in the lawful
custody of Ohio or its agents, because the Belmont County Court of Common Pleas, in which he was

convicted, is not a “state court.” He also argued that his indictment and judgment are, therefore,

legal nullities. Finally, Foster stated that he sought relief pursuant to § 1651 because § 2254 does

not apply in this case.

       A magistrate judge filed a report, recommending that the district court construe Foster’s

application as a § 2254 habeas petition and dismiss the petition as untimely because Foster did not

file the petition within one year of the effective date of the Antiterrorism and Effective Death Penalty

Act. See 28 U.S.C. § 2244(d)(1). The magistrate judge also determined that, contrary to Foster’s

request, relief under the All Writs Act was unavailable to him because his attempt to seek release

from state custody is covered by § 2254. Rejecting Foster’s objections, the district court noted that
Foster’s claims lacked merit and that, contrary to Foster’s arguments, common pleas courts are state

courts. Nonetheless, the district court adopted the magistrate judge’s recommendation, determined

that Foster’s claims are controlled by § 2254, and dismissed the petition as untimely. This Court

granted Foster’s application for a certificate of appealability.

       On appeal, Foster argues that: (1) the district court improperly construed his All Writs

petition as a § 2254 petition because he was not challenging his conviction and sentence; and (2) the

district court recharacterized his All Writs petition without providing him adequate notice, warning,
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or an opportunity to amend his petition. In a pro se reply brief, Foster argues that the brief filed by

the Ohio Attorney General is improper because the State of Ohio is not a party to this action.

        We review de novo a district court’s denial of a § 2254 petition for a writ of habeas corpus

and review the district court’s factual findings for clear error. Cristini v. McKee, 526 F.3d 888, 897

(6th Cir. 2008).

        Initially, we conclude that the district court erroneously converted Foster’s petition for relief

under the All Writs Act into a request for relief under § 2254, and dismissed the converted § 2254
habeas petition as untimely, without providing the warning articulated in Castro v. United States,

540 U.S. 375, 383 (2003) (addressing the recharacterization of pleadings into motions under 28

U.S.C. § 2255). See Gooden v. United States, 627 F.3d 846, 849 (11th Cir. 2010) (“In light of

Castro’s unqualified holding, we hold that a district court must provide the requisite notice and

warning mandated by Castro, even where the court determines that the re-characterized motion is

untimely.”). A pro se pleading may not be recharacterized as a § 2254 habeas petition unless the

movant is advised of the district court’s intention to recharacterize it, warned that the

recharacterization could adversely affect the ability to seek future relief under § 2254, and allowed

an opportunity to withdraw or amend the pleading. See Castro, 540 U.S. at 383. The district court’s

sua sponte conversion of Foster’s petition for relief under the All Writs Act into an initial § 2254
habeas petition was improper because the district court did not follow this procedure.

        Nonetheless, we affirm the district court’s judgment because it properly determined that the

claims asserted in Foster’s petition for relief under the All Writs Act lacked merit. Foster argued that

the Belmont County Court of Common Pleas is not a state court and, therefore, the State of Ohio did

not have lawful custody of him because his state-court indictment and judgment of conviction are

legal nullities. As the district court properly concluded, common pleas courts, like the Belmont

County Court of Common Pleas, are state courts. See, e.g., Mumford v. Basinski, 105 F.3d 264,

267–68 (6th Cir. 1997) (explaining that Ohio common pleas courts are entitled to Eleventh
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Amendment immunity because they are arms of the state, not the municipality which they serve).

Therefore, Foster failed to show that his state detention was invalid because he has not shown that

the indictment and judgment are legal nullities. Because the district court properly concluded that

the claims asserted in Foster’s petition lacked merit, the judgment can be affirmed on that basis,

without recharacterizing Foster’s petition as a request for § 2254 relief. See 28 U.S.C. § 2106

(providing that a “court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any

judgment, decree, or order of a court lawfully brought before it for review, and may remand the
cause and direct the entry of such appropriate judgment, decree, or order, or require such further

proceedings to be had as may be just under the circumstances”).

       For these same reasons, Foster’s request that this Court remand the case to permit him the

opportunity to withdraw or amend his petition “to take further action as he may deem appropriate”

would be futile. Finally, the Ohio Attorney General properly filed a brief as the attorney for the

named respondent.

       We affirm the district court’s judgment, but clarify that this action will not count as a first

petition for habeas corpus relief under § 2254.
