Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Powell v. Hooks

United States District Court, S.D. Ohio, Western Division, Dayton

November 7, 2017

CEDRIC E. POWELL, Petitioner,
v.
MARK HOOKS, Warden, Respondent.

          Thomas M. Rose District Judge.

          REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge.

         This 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.

         Powell 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 nudity-oriented material.

         His original Petition in this case raised one ground for relief:

Ground One: Ineffective Assistance of Counsel.
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.)

         Upon 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). Id.

         The 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.

         Powell 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 read:

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 of ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.