United States District Court, S.D. Ohio, Western Division, Dayton
CEDRIC E. POWELL, Petitioner,
MARK HOOKS, Warden, Respondent.
M. Rose District Judge.
REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge.
habeas corpus case under 28 U.S.C. § 2254 is before the
Court for decision on the merits. The Amended Petition was
filed July 17, 2017 (ECF No. 23). Respondent filed an Amended
Return September 8, 2017 (ECF No. 31). Despite an extension
of time to file a reply, Petitioner has not done so and the
extension expired October 24, 2017. The case is therefore
ripe for decision.
seeks relief from his conviction and sentence in 1999 in the
Montgomery County Common Pleas Court on counts of rape,
kidnapping, corruption of a minor, multiple counts of
felonious assault, pandering sexually-oriented material
involving a minor, and illegal use of a minor in
original Petition in this case raised one ground for relief:
Ground One: Ineffective Assistance of
Supporting Facts: Remanded on the
13th of Dec. 2010, Adeleine Hamilton appointed as
counsel, we planned for two days for hearing on the 16 of
December. Trial court appointed another counsel on the
15th of Dec. and remocve [sic] my original counsel
Ms. Hamilton in chambers, without an explanation, and forced
me to take counsel of his choice, who did nothing for me and
let trial court do whatever - I had valid argument of a void
sentence in accords [sic] with st. [sic] v. Baker for failure
to set forth the manner of conviction and a non final
appealable order, but my new counsel did nothing. Ms.
Hamilton was willing to argue it.
(Petition, ECF No. 4, PageID 17.)
the filing of the Petition, the Magistrate Judge determined
that this was a second or successive habeas application
because Mr. Powell had filed a previous habeas application
attacking the same conviction in Case No. 3:02-cv-214
(Transfer Order, ECF No. 2, PageID 10). Having made that
determination, the Court was bound to transfer the case to
the Sixth Circuit for Mr. Powell to obtain its permission to
proceed under 28 U.S.C. § 2244(b). In re: Kenneth W.
Smith, 690, F.3d 809 (6th Cir. 2012).
Sixth Circuit disagreed with this Court's
second-or-successive decision and remanded the case. In
re: Cedric E. Powell, Case No. 16-3356 (6th
Cir. Jan. 6, 2017)(unreported; copy at ECF No. 6). It held:
Powell's application to file a second or successive
habeas petition is unnecessary. As the respondent concedes,
Powell does not need authorization to file a successive
habeas petition to the extent that his claims arise out of
his 2011 resentencing hearing. Magwood v. Patterson,
561 U.S. 320, 342 (2010). Moreover, pursuant to our decision
in In re Stansell, 828 F.3d 412, 413-14 (6th Cir.
2016), Powell's resentencing hearing created a new
judgment, freeing him from the requirement to seek
authorization to file a second or successive habeas petition
to challenge any other aspect of his convictions and
sentence. Although the respondent contends that
Stansell was decided incorrectly, we are not at
liberty to disregard it. See United States v.
Washington, 127 F.3d 510, 517 (6th Cir. 1997).
Id. at PageID 22.
was then granted leave to amend to re-plead his original
habeas claims and has done so (Amended Petition, ECF No. 23).
His Amended Grounds for Relief from the 2002 Application
2002 Ground One: Petitioner was denied a
fair trial when trial court committed prejudicial error in
the consolidated trial by allowing the state to circumvent
the prohibition of other acts and photos in a charged offense