Hedger v. Williams

Filing 8

ORDER DISMISSING CASE with prejudice for lack of jurisdiction. Signed by Chief Judge David R. Herndon on 9/19/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DANIEL GREGORY HEDGER,
B-81033,
Petitioner,
vs.
TARRY WILLIAMS,
Respondent.

Case No. 14-cv-00940-DRH

MEMORANDUM AND ORDER
HERNDON, Chief District Judge:
Petitioner Daniel Hedger, who is currently incarcerated at Stateville
Correctional Center, brings this habeas corpus action pursuant to 28 U.S.C.
§ 2254. (Doc. 1). In addition, Hedger has filed a motion (Doc. 4) for leave to file
a second or successive petition for habeas corpus relief pursuant to 28 U.S.C. §
2244(b)(3)(A).
Procedural History
On April 11, 2002, following a bench trial in the Circuit Court of Saline
County, Illinois, Hedger was convicted of first-degree murder.

Hedger was

sentenced to natural life in prison. On May 21, 2004, the Appellate Court of
Illinois, Fifth District affirmed Hedger’s conviction but vacated his sentence and
remanded the case to the trial court for resentencing.
resentenced to 30 years’ imprisonment on July 30, 2004.

Page 1 of 5

Hedger was then

After seeking and being denied post-conviction relief in state court,
Hedger sought habeas corpus relief in this Court pursuant to § 2254.
Hedger v. Pierce, 10-cv-00553 (S.D.Ill.) (July 26, 2010) (Doc. 1).

See

In that

petition, Hedger raised the following grounds for relief: 1) favorable forensic
evidence was destroyed by the state’s expert witness; 2) the trial court erred in
allowing testimony regarding the destroyed evidence; 3) the evidence presented
was insufficient to find him guilty of murder beyond a reasonable doubt; 4) the
prosecution engaged in misconduct; 5) his trial counsel was ineffective for
failing to raise the defense of intoxication; 6) his trial counsel was ineffective in
failing to provide expert testimony regarding his bipolar disorder; 7) the
prosecutor made improper closing arguments; 8) he was found guilty against
the manifest weight of the evidence; and 9) his appellate counsel was ineffective
for failing to raise the previous eight claims for relief. Id. On June 7, 2011, the
Court entered an order finding that the petition was time barred and dismissed
the case. See Hedger v. Pierce, 10-cv-00553 (Doc. 16).
Present Petition
In the instant petition, Hedger again challenges the conviction underlying
his 2004 sentence and judgment. (present petition, Doc. 1). In addition to the
nine grounds previously asserted, Hedger raises three additional grounds as a
basis for relief: 1) his appellate counsel erroneously conceded that Hedger’s
initial post-conviction petition was untimely and, thus, was ineffective; 2) his
appellate counsel provided ineffective assistance on appeal from the initial
post-conviction petition by erroneously conceding that the petition was
Page 2 of 5

untimely; and 3) the prosecution engaged in selective prosecution. (Doc. 1, pp.
9-10).
Discussion
A petitioner is “entitled to one clean shot at establishing his entitlement
to relief in a federal habeas corpus proceeding.” Paulousky v. VanNatta, 431
F.3d 1063, 1064 (7th Cir.2005).

Thus, “[a] claim presented in a second or

successive habeas corpus application under section 2254 that was presented
in a prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1). Nine of the
twelve claims raised in this petition are identical to claims Hedger made in his
prior § 2254 petition. See Hedger v. Pierce, 10-cv-00553 (Doc. 16). Pursuant
to § 2244(b)(1), these claims must be dismissed.
The remaining three claims are subject to dismissal pursuant to 28
U.S.C. § 2244(b)(3)(A), which states that “[b]efore a second or successive
application permitted by this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order authorizing the
district court to consider the application.” The dismissal of Hedger’s prior §
2254 petition as untimely counts as a prior habeas action for purposes of the
limitations on his second or successive petitions. Altman v. Benik, 337 F.3d
764, 766 (7th Cir.2003). Hedger acknowledges, through his motion seeking
leave to file the present petition (Doc. 4), that the instant action constitutes a
second or successive § 2254 petition and that he must receive permission prior
to proceeding.

However, there is no indication that Hedger has obtained

permission from the Seventh Circuit Court of Appeals, as required by §
Page 3 of 5

2244(b)(3)(A). Because it appears that Hedger did not first obtain permission
from the Seventh Circuit Court of Appeals to maintain the instant § 2254
action in this Court, the Court lacks jurisdiction to grant Hedger the relief he
seeks on the remaining three claims.

On this basis, the entire matter is

dismissed.
Disposition
IT IS HEREBY ORDERED that Hedger's application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 is DISMISSED with prejudice for lack of
jurisdiction. Hedger’s motion to appoint counsel (Doc. 3) and his motion for
order to show cause (Doc. 4) are DENIED.
Should Hedger desire to appeal this Court’s ruling dismissing his petition
for a writ of habeas corpus, he must first secure a certificate of appealability,
either from this Court or from the court of appeals. See Fed. R. App. P. 22(b);
28 U.S.C. § 2253(c)(1).

Pursuant to 28 U.S.C. § 2253, a certificate of

appealability may issue “only if the applicant has made a substantial showing
of the denial of a constitutional right.”
This requirement has been interpreted by the Supreme Court to mean
that an applicant must show that “reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). While a petitioner need not show that his
appeal will succeed, Miller-El v. Cockrell, 537 U.S. 322, 337 (2003), he must
show “something more than the absence of frivolity” or the existence of mere
“good faith” on his part.

Id. at 338 (citation omitted).
Page 4 of 5

If the district court

denies the request, a petitioner may request that a circuit judge issue the
certificate. Fed. R. App. P. 22(b)(1)-(3).
For the reasons detailed above, the Court has determined that Hedger
has not obtained permission to file the present action, and therefore he is not
entitled to relief pursuant to 28 U.S.C. § 2254. Furthermore, the Court finds
no basis for a determination that its decision is debatable or incorrect. Thus,
petitioner has not made “a substantial showing of the denial of a constitutional
right.”
IT IS THEREFORE ORDERED that a certificate of appealability shall
NOT be issued.
The Clerk is DIRECTED to close this case and enter judgment
accordingly.
IT IS SO ORDERED.
Signed this 19th day of September, 2014.

Digitally signed
by David R.
Herndon
Date: 2014.09.19
15:56:10 -05'00'
Chief Judge
United States District Court

Page 5 of 5