Powers v. Bobby, No. 1:2008cv00505 - Document 29 (N.D. Ohio 2010)
Court Description: Opinion and Order signed by Judge James S. Gwin on 11/19/10 denying petitioner's motion for reconsideration. (Related Doc. 28 ) (M,G) Modified document type on 11/19/2010 (H,KR).
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Powers v. Bobby Doc. 29 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO ------------------------------------------------------: CESAR POWERS, : : Petitioner, : : v. : : WARDEN BOBBY, : : Respondent. : : ------------------------------------------------------- CASE NO. 1:08-CV-0505 OPINION & ORDER [Resolving Doc. No. 28] JAMES S. GWIN, UNITED STATES DISTRICT JUDGE: Petitioner Cesar Powers ostensibly moves this Court to reconsider its previous Opinion and Order denying the Petitioner s Rule 60(b)(6) motion for relief from judgment and Rule 12(f) motion to strike. [Doc. 28.] However, because the Petitioner s motion ultimately asks this Court to reconsider the grounds of the Sixth Circuit s order affirming the denial of Powers s habeas petition, this Court DENIES Powers s motion for lack of jurisdiction. On February 28, 2009, this Court denied Powers s petition for habeas relief under 28 U.S.C. ยง 2254. [Doc. 16.] In dismissing Powers s petition, this Court confirmed the state appellate and supreme courts findings that res judicata procedurally barred the Petitioner s ineffective assistance of counsel claim. The Sixth Circuit affirmed, finding that the state courts decision did not involve unreasonable application of clearly established federal law. The Sixth Circuit also found that Powers had procedurally defaulted his defective indictment and ineffective assistance of counsel claims, and -1- Dockets.Justia.com Case No. 1:08-CV-0505 Gwin, J. had forfeited his Double Jeopardy claim by failing to raise it on appeal. [Doc. 20; Doc. 21.] On May 13, 2010, Powers filed a Rule 60(b)(6) for relief from judgment and a Rule 12(f) motion to strike Respondent Bobby s opposition to the 60(b)(6) motion. [Doc. 22.] This Court denied that motion. [Doc. 27.] On October 22, 2010, Petitioner Powers filed the instant motion for reconsideration. Powers challenges the application of res judicata and procedural default to preclude his ineffective assistance of trial and appellate counsel claims. Powers also asserts that his conviction on two counts against him, following dismissal of two other counts, placed him in double jeopardy. [Doc. 28.] Because Powers s arguments ultimately challenge the Sixth Circuit s order, this Court does not have jurisdiction to consider his motion. Moreover, to the extent that any part of Powers s motion asks this Court only to reconsider its Opinion and Order denying Powers s Rule 60(b)(6) motion for relief from judgment, the Court finds that the Petitioner merely repeats arguments already made to this Court. A court may grant a motion to amend or alter judgment if a clear error of law or newly discovered evidence exists, an intervening change in controlling law occurs, or to prevent manifest injustice. See Gencorp, Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). However, [i]t is not the function of a motion to reconsider either to renew arguments already considered and rejected by a court or to proffer a new legal theory or new evidence to support a prior argument when the legal theory or argument could, with due diligence, have been discovered and offered during the initial consideration of the issue. McConocha v. Blue Cross & Blue Shield Mut. of Ohio, 930 F. Supp. 1182, 1184 (N.D. Ohio 1996) (quoting In re August 1993 Regular Grand Jury, 854 F. Supp. 1403, -2- Case No. 1:08-CV-0505 Gwin, J. 1408 (S.D. Ind. 1994)). For the foregoing reasons, the Court DENIES the Petitioner s motion for reconsideration. IT IS SO ORDERED. s/ James S. Gwin JAMES S. GWIN UNITED STATES DISTRICT JUDGE Dated: November 19, 2010 -3-
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