Powers v. Eppinger

Filing 10

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)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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CESAR POWERS,
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Petitioner,
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vs.
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WARDEN LASHANN EPPINGER,
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Respondent.
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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 Ohio Court of Appeals affirmed Petitioner’s convictions 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the double jeopardy clause, and (iii) the statute used to sentence him had been repealed.6

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).
1

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 at *5; State v. Powers, 854 N.E.2d 1092 (Ohio 2006) (unpublished table decision).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.
3
4

Case No. 1:18-cv-528
Gwin, J.

The Court denied Powers’ petition.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 file a “successive” habeas petition unless he first obtains
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 Petitioner’s claims rest on newly discovered 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

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Case No. 1:18-cv-528
Gwin, J.

For the foregoing reasons, the Court ADOPTS Magistrate 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

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