Oliver v. Ramos et al

Filing 89

WRITTEN Opinion entered by the Honorable Charles P. Kocoras on 7/28/2011: This Court declines to issue a certificate of appealability. [For further details see written opinion.] Mailed notice (ber, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Charles P. Kocoras

CASE NUMBER

09 C 7541

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

July 28, 2011

US ex rel. Harold Oliver vs. Marcus Hardy

DOCKET ENTRY TEXT

This Court declines to issue a certificate of appealability.

O[ For further details see text below.]

Docketing to mail notices.

ORDER
This case comes before the Court on the application of Petitioner Harold Oliver (“Oliver”) for a certificate
of appealability. For the reasons stated below, the application is denied.
In 1991, a jury convicted Oliver in the Circuit Court of Cook County, Illinois of armed robbery and
aggravated criminal sexual assault. In 1994, the appellate court reversed Oliver’s convictions and remanded the
case for a new trial because the jury selection procedure did not ensure a fair and impartial jury. In 1997, a jury
in the Circuit Court of Cook County again convicted Oliver of armed robbery and aggravated criminal sexual
assault. The Illinois trial court sentenced Oliver to consecutive terms of imprisonment for thirty and sixty years
in the Illinois Department of Corrections. The Illinois Appellate Court affirmed Oliver’s convictions. On
October 6, 2009, the Illinois Supreme Court denied Oliver’s petition for leave to appeal. Oliver did not petition
the United States Supreme Court for a writ of certiorari.
On February 1, 2000, Oliver filed a post-conviction petition in the Circuit Court of Cook County and
subsequently filed two supplemental post-conviction petitions. Oliver’s post-conviction petition remains pending.

On December 4, 2009, this Court received Oliver’s petition for a writ of habeas corpus, raising twenty-six
claims. On April 7, 2010, Marcus Hardy (“Hardy”), the Warden of the Stateville Correctional Center, moved to
dismiss the petition because Oliver failed to exhaust his state court remedies. On October 20, 2010, this Court
denied Hardy’s motion to dismiss and excused Oliver from satisfying the exhaustion requirement in this case
because the Illinois courts’ delay in deciding Oliver’s petition was both inordinate and unjustified. United States
ex rel. Oliver v. Hardy, No. 09-cv-7541 (N.D. Ill. Oct. 20, 2010).

09C7541 US ex rel. Harold Oliver vs. Marcus Hardy

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ORDER
On May 26, 2011, this Court denied Oliver’s petition for a writ of habeas corpus and declined to issue a
certificate of appealability. United States ex rel. Oliver v. Hardy, No. 09-cv-7541, 2011 WL 2111897 (N.D. Ill.
May 26, 2011). The Court denied Oliver’s habeas petition because his claims were admittedly procedurally
defaulted and Oliver had not presented any new evidence to demonstrate his eligibility for the miscarriage of
justice exception. Id. Oliver now asks this Court, for a second time, to issue a certificate of appealability on his
claim that the state court improperly instructed the jury regarding the evaluation of eyewitness identification
testimony. Without citing any authority, Oliver argues that the erroneous jury instruction given at his trial is
analogous to new, reliable evidence which demonstrates that Oliver is actually innocent.
According to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts,
“[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the
[petitioner].” A district court may issue a certificate of appealability only if the petitioner makes “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253©. Specifically, when a district court denies
a habeas petition on procedural grounds, the petitioner must satisfy two threshold inquiries and show that jurists
of reason would find it debatable: (1) whether the petition states a valid claim of the denial of a constitutional
right; and (2) whether the district court’s procedural ruling was correct. Slack v. McDaniel, 529 U.S. 473, 484
(2000).
This Court addresses only the second threshold inquiry. Oliver cannot show that reasonable jurists would
find the correctness of this Court’s procedural ruling debatable. As discussed in our May 26, 2011 Memorandum
Opinion, Oliver’s jury instruction claim is procedurally defaulted and Oliver presents no new evidence of his
innocence to demonstrate his eligibility for the miscarriage of justice exception to the procedural default rule.
Further, this Court found no case, and Oliver cites none, which holds that an erroneous jury instruction is
analogous to new, reliable evidence. Because Oliver cannot satisfy the second inquiry for a certificate of
appealability, this Court need not address the first. Slack, 529 U.S. at 485 (encouraging courts to first resolve
procedural issues and restrain from unnecessarily resolving constitutional questions). Accordingly, this Court
declines to issue a certificate of appealability.

Dated:

July 28, 2011
CHARLES P. KOCORAS
U.S. District Court Judge

09C7541 US ex rel. Harold Oliver vs. Marcus Hardy

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