United States District Court, W.D. Wisconsin
ODELL M. HARDISON, Petitioner,
DON STROHN, Respondent.
OPINION & ORDER
D. PETERSON, DISTRICT JUDGE.
petitioner Odell M. Hardison, a state prisoner incarcerated
at the New Lisbon Correctional Institution, has filed his
fourth habeas petition under 28 U.S.C. § 2254. He
contends that he is entitled to habeas relief because the
government lacked sufficient evidence to convict him of
various drug-related offenses, he had ineffective assistance
of counsel, and he was subject to a miscarriage of justice.
Dkt. 1, at 1-3.
petition is before the court for preliminary review under
Rule 4 of the Rules Governing Section 2254 Cases. Because
Hardison has not obtained permission from the court of
appeals to file a successive habeas petition, this court
lacks jurisdiction to consider the petition's merits, so
I will dismiss the petition and close the case.
the following facts from Hardison's petition and his
prior habeas proceedings. Dkt. 1; Hardison v. Pugh,
No. 10-cv-285 (E.D. Wis. filed Apr. 5, 2010); Hardison v.
Pugh, No. 13-cv-1244 (E.D. Wis. filed Nov. 5, 2013);
Hardison v. Douma, No. 16-cv-287 (E.D. Wis. filed
Mar. 9, 2016).
2004, Hardison was convicted of five offenses: one count of
maintaining a drug trafficking place, one count of delivering
between 15 and 40 grams of cocaine, one count of delivering
between 5 and 15 grams of cocaine, and two counts of
possessing a firearm as a felon. He was sentenced to serve 35
years: 16 years of initial confinement and 19 years of
subsequently filed three 2254 petitions in the Eastern
District of Wisconsin, all challenging the same 2004
conviction. In his first petition, he argued that he had
ineffective assistance of counsel and that the government
obtained evidence through an unlawful search and seizure. No.
10-cv-285, Dkt. 2 (E.D. Wis. Apr. 5, 2010). The court denied
the petition as untimely: the Wisconsin Supreme Court had
denied his petition for review on February 24, 2006, but
Hardison had filed his petition on April 5, 2010. No.
10-cv-285, Dkt. 28 (E.D. Wis. Dec. 20, 2010). In his second
petition, Hardison argued that his right to a jury trial had
been violated and that he had ineffective assistance of
counsel. No. 13-cv-1244, Dkt. 3 (E.D. Wis. Nov. 6, 2013). The
court denied the second petition as an unauthorized
successive petition. No. 13-cv-1244, Dkt. 17 (E.D. Wis. May
14, 2014). In his third petition, Hardison argued that the
search warrant was illegally executed, that the criminal
complaint against him lacked essential facts to show probable
cause, that the trial court lacked subject matter
jurisdiction, that he had ineffective assistance of counsel,
and that the government failed to disclose pertinent evidence
and destroyed it. No. 16-cv-287, Dkt. 1 (E.D. Wis. filed Mar.
9, 2016). The court again denied the petition as an
unauthorized successive petition. No. 16-cv-287, Dkt. 7 (E.D.
Wis. Mar. 30, 2016).
first question is whether Hardison's 2254 petition before
me is successive to his prior petitions. I conclude that it
is. Generally, courts “do not count previous petitions
that were dismissed for technical or procedural deficiencies
that the petitioner can cure before refiling.”
Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003).
When a petition is dismissed as untimely, as it was in
Hardison's first habeas proceeding, that petition is
considered denied on the merits because the petitioner
“can do nothing to correct his late filing, and if he
refiled his petition the district court would again deny it
as untimely.” Id.; accord Pavlovsky v.
VanNatta, 431 F.3d 1063, 1064 (7th Cir. 2005)
(“The dismissal of a suit as untimely is a dismissal on
the merits, and so should ordinarily be made with prejudice,
barring relitigation.”). One narrow exception to this
rule could apply if the court that denied the previous
petition had explicitly noted-as opposed to being silent-that
the dismissal was without prejudice, Pavlovsky, 431
F.3d at 1065, but that is not the case here: the Eastern
District did not explicitly note that the dismissal of
Hardison's 2010 petition was without prejudice.
See No. 10-cv-285, Dkt. 28 (E.D. Wis. Dec. 20,
habeas petition can be deemed not successive if it is
“based on a claim that did not become ripe any earlier
than until after the adjudication of the petitioner's
first petition.” United States v. Obeid, 707
F.3d 898, 903 (7th Cir. 2013). Hardison's claims were
ripe before his first petition. He claims ineffective
assistance of counsel, but he could have raised the claim in
his first petition; indeed, he presented the claim in his
first petition. See No. 10-cv-285, Dkt. 2. Likewise,
he could present his remaining claims-that the government
lacked sufficient evidence and that he suffered a miscarriage
of justice, both because the law enforcement had destroyed
pertinent evidence-in his first petition; Hardison indicates
that he raised these issues on direct appeal before the state
courts. Dkt. 1, at 2-3.
Hardison's 2254 petition is a successive petition, he
must obtain authorization from the court of appeals before
this court can exercise jurisdiction and consider the merits.
28 U.S.C. §§ 2244(a), (b), 2255(h); see also
Suggs v. United States, 705 F.3d 279, 282 (7th Cir.
2013) (“Without authorization from the court of
appeals, the district court has no jurisdiction to hear the
[successive] petition.”). Hardison has not obtained
such authorization, so this court lacks jurisdiction to
consider the merits. I will dismiss the petition.
has filed a motion asking for a certificate of appealability
along with his petition. Dkt. 2. This jurisdictional
dismissal constitutes a final order, so Hardison can appeal
only with a certificate of appealability. See 28
U.S.C. § 2253(c); Sveum v. Smith, 403 F.3d 447,
448 (7th Cir. 2005). Under Rule 11 of the Rules Governing
Section 2254 Cases, I must issue or deny a certificate of
appealability when entering a final order adverse to a
petitioner. A certificate of appealability will not issue
unless the petitioner makes “a substantial showing of
the denial of a constitutional right, ” 28 U.S.C.
§ 2253(c)(2), which requires him to demonstrate
“that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong.” Tennard v. Dretke, 542 U.S. 274,
282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000)). Although the rule allows me to ask the parties
to submit arguments on whether a certificate should issue, it
is not necessary to do so in this case. Because reasonable
jurists would not otherwise debate whether this petition is
successive, I will not issue a certificate of appealability.