Powers v. Eppinger, No. 1:2018cv00528 - Document 10 (N.D. Ohio 2018)
Court Description: Opinion & Order signed by Judge James S. Gwin on 12/11/18. The Court, for the reasons set forth in this order, adopts the Report and Recommendation of the Magistrate Judge, grants respondent's motion to transfer, and transfers this case to the Sixth Circuit Court of Appeals. (Related Docs. 7 and 9 ) (D,MA)
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Powers v. Eppinger Doc. 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO -----------------------------------------------------------------: CESAR POWERS, : : Petitioner, : : vs. : : WARDEN LASHANN EPPINGER, : : Respondent. : : ------------------------------------------------------------------ Case No. 1:18-cv-528 OPINION & ORDER [Resolving Doc. 7] JAMES S. GWIN, UNITED STATES DISTRICT JUDGE: In this case, Cesar Powers again petitions the Court for a writ of habeas corpus under 28 U.S.C. § 2254. Because Petitioner did not obtain the required circuit approval to file a second habeas petition, the Court TRANSFERS the case to the Sixth Circuit.1 In November 2004, an Ohio jury convicted Petitioner Powers of two counts of felonious sexual penetration with force.2 The trial court sentenced Petitioner to mandatory life imprisonment.3 The Oh“o Court of Appeals aff“rmed Pet“t“oner’s conv“ct“ons and the Ohio Supreme Court declined review.4 In February 2008, Powers filed a habeas petition with this Court.5 He claimed that: (i) there was insufficient evidence to support his convictions, (ii) his convictions violated the double jeopardy clause, and (iii) the statute used to sentence him had been repealed. 6 1 In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (holding that, when a petitioner files a habeas petition in the district court without circuit approval, the district court should transfer the petition to the Sixth Circuit). 2 State v. Powers, No. 86381, 2006 WL 1044607, at *2 (Ohio Ct. App. April 20, 2006). 3 Id. Id. at *5; State v. Powers, 854 N.E.2d 1092 (Ohio 2006) (unpublished table decision). 5 Powers v. Bobby, No. 1:08-cv-505, 2008 WL 4823134, at *1 (N.D. Ohio Nov. 3, 2008). 6 Id. at *3. 4 Dockets.Justia.com Case No. 1:18-cv-528 Gwin, J. The Court den“ed Powers’ pet“t“on.7 The Sixth Circuit affirmed.8 Nearly ten years later, Petitioner Powers brings yet another habeas petition seeking release from the same sentence.9 This time, he claims that: (i) his conviction is void because no criminal complaint was filed in his case, (ii) the trial court lacked jurisdiction over his case, and (iii) he received ineffective assistance of counsel.10 Respondent moves the Court to either dismiss the case or transfer it to the Sixth Circuit.11 Magistrate Judge Greenberg recommends that the Court grant Respondent’s motion and transfer the case to the Sixth Circuit. 12 Petitioner failed to object. Petitioner Powers may not f“le a success“ve habeas pet“t“on unless he f“rst obta“ns authorization from the Sixth Circuit.13 A petition is considered successive if, inter alia, it raises claims that could have been raised in the first petition, but [were] not so raised, either due to deliberate abandonment or inexcusable neglect. 14 None of Pet“t“oner’s cla“ms rest on newly d“scovered legal rights or evidence. Rather, it appears that Petitioner Powers could have asserted his current claims in his first habeas petition. Thus, this is a successive petition requiring Sixth Circuit authorization before the Court may consider it. 7 8 Id. at *8. Powers v. Bobby, No. 08-4702 (6th Cir. Oct. 5, 2009) (unpublished opinion). 9 Doc. 1. Doc. 5 at 6, 7, 10. 11 Doc. 7. Petitioner opposes. Doc. 8. 12 Doc. 9. 13 28 U.S.C. § 2244(b)(3)(A). 14 See, e.g., In re Bowen, 436 F.3d 699, 704 (6th Cir. 2006). 10 -2- Case No. 1:18-cv-528 Gwin, J. For the foregoing reasons, the Court ADOPTS Mag“strate Judge Greenberg’s Report and Recommendation and GRANTS Respondent’s motion to transfer. IT IS SO ORDERED. s/ Dated: December 11, 2018 James S. Gwin JAMES S. GWIN UNITED STATES DISTRICT JUDGE -3-
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