Nichols v. State of Illinois et al

Filing 5

ORDER DISMISSING CASE. Signed by Judge David R. Herndon on 7/6/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEMETRIUS NICHOLS,
No. N61355,
Petitioner,
vs.

CIVIL NO. 15-CV-00633-DRH

STATE OF ILLINOIS, and
DIRECTOR IDOC,
Respondents.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Demetirus Nichols, an inmate in the custody of the Illinois Department of
Corrections and currently housed at Menard Correctional Center, brings this
action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. According to the
petition, Nichols is serving a 17-year sentence after being convicted in Cook
County, Illinois, in 2004 for first degree murder, aggravated battery and
aggravated unlawful restraint. See People v. Nichols, No. 1-04-0516, 2008 WL
681-29 (Ill. App. 1st Dist. 2006). 1
The petition is a bit jumbled, but it is clear that Nichols contends: (1) he
was convicted based on improper evidence, including perjured and false
testimony; and (2) he had ineffective assistance of counsel. He asserts that he has
1

The petition references a variety of “case numbers.” The Cook County circuit court case number

may have been 00-CR-6335, but IDOC records indicate Nichols is only serving time on 2002

convictions. The mittimus number referenced in the petition, 02C66187601, corresponds with
the 2002 convictions. See https://www.illinois.gov/idoc/Offender/Pages/InmateSearch.aspx. Also,
the appellate case number referenced in the petition corresponds with the aforementioned
convictions.

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been denied due process in violation of the Fourteenth Amendment. He further
asserts that he has been subjected to cruel and unusual punishment, i.e., unjust
imprisonment, and medical injuries incurred while in prison.
Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts provides that upon preliminary consideration by the district court
judge, “[i]f it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner.”
The petition is problematic in several respects, regardless of the merits of
Nichols arguments for overturning his conviction.
First, neither the State of Illinois nor the Director of the Illinois Department
of Corrections is a proper respondent. Rule 2(a) of the Rules Governing Section
2254 Cases in the United States District Courts dictates that the person having
custody of the petitioner is the proper respondent—meaning the warden of
Menard.

For that reasons alone the petition must be dismissed without

prejudice.
Second, not all of the grounds asserted are proper fodder for a habeas
petition. A habeas petitioner is entitled to a writ of habeas corpus under Section
2254 if the challenged state court decision is either “contrary to” or “an
unreasonable application of” clearly established federal law as determined by the
United States Supreme Court. See 28 U.S.C. § 2254(d)(1); Avila v. Richardson,
751 F.3d 534, 536 (7th Cir. 2014) (citing Williams v. Taylor, 529 U.S. 362, 404–

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05 (2000)).

Thus, Nichols’ constitutional claims relative to his trial and

conviction are proper grounds for a Section 2254 petition. However, any
constitutional claims regarding events while in prison—such as Nichols’ apparent
Eighth Amendment medical care claim—must be brought in a separate action
under 42 U.S.C. § 1983.
A third problem with Nichols’ petition is not as easily solved. A person
convicted in state court is generally limited to filing only one petition for writ of
habeas corpus in federal court. Nichols v. Hulick, No. 07-cv-03498, 2008 WL
681029 (N.D. Ill. 2008), was Nichols’ first Section 2254 petition.
“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).

However, a second or successive petition asserting

certain types of claims that have not been previously presented may be viable.
A claim presented in a second or successive habeas corpus application
under section 2254 that was not presented in a prior application shall be
dismissed unless—
(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable; or
(B) (i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by clear
and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty of
the underlying offense.
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28 U.S.C. § 2244(b)(2).
In his first Section 2254 petition, Nichols argued that: (1) his conviction
was based on perjured/false testimony; 2 and (2) sentencing him to concurrent
sentences for first degree murder and aggravated unlawful restraint without
sufficient evidence that the victim’s injuries were serious or life-threatening denied
him due process. See 07-cv-03498, Docs. 10, 38. The petition was denied.
The claim that perjured/false testimony 3 was used was deemed exhausted
in the state system, but procedurally defaulted, in that it had not been raised on
direct appeal, and no cause or prejudice for that omission had been established.
The due process argument failed as a matter of state and federal law.

That

decision was not appealed. Thus, Nichols’ present argument regarding the false
evidence used for conviction is not new, but he did not raise ineffective assistance
of counsel in his previous petition. The petition does not appear to touch upon
any of the Section 2244(b)(2) preconditions.
Regardless of whether Nichols can qualify under Section 2244(b)(2), before
filing a second or successive petition asserting a Section 2244(b) claim, a
petitioner “shall move in the appropriate court of appeals for an order authorizing
the district court to consider the application.”

28 U.S.C. § 2244(b)(3)(A).

A

district court is without jurisdiction to entertain a second or successive petition
2

The same key piece of testimony and or evidence is the focus of both the past and present
petitions: a statement by Ebony Foster asserting that Nichols committed domestic abuse.
3

The district court observed that Foster’s affidavit was at issue, not any trial testimony, so the
issue should be characterized as false evidence, not perjured testimony. That is also true relative
to the present petition.

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that has been filed without the authorization of the court of appeals. Burton v.

Stewart, 549 U.S. 147, 157 (2007); Lambert v. Davis, 449 F.3d 774, 777 (7th Cir.
2006). Nichols’ present petition was filed without the required authorization and
must be dismissed for lack of jurisdiction. Dismissal shall be without prejudice
to a future, properly authorized, successive petition.
IT IS HEREBY ORDERED that, for the reasons stated, the petition (Doc. 1)
is DISMISSED for want of jurisdiction.

Dismissal is without prejudice to

bringing a properly authorized successive petition, naming the proper respondent.
Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, this Court must “issue or deny a certificate of
appealability (“COA”) when it enters a final order adverse to the applicant.” A
certificate should be issued only where the petitioner “has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Where a habeas petition is dismissed on procedural grounds without
reaching the underlying constitutional issue, the petitioner must show that
reasonable jurists would “find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Both components must be established for a
COA to issue.

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Here, it is clear that this Court is without jurisdiction to entertain Nichols’
petition because it is a second or successive petition filed without the
authorization of the Court of Appeals. No reasonable jurist would find the issue
debatable. Accordingly, the Court DENIES a certificate of appealability.

Digitally signed by
David R. Herndon
Date: 2015.07.06
14:07:30 -05'00'

IT IS SO ORDERED.
DATE: July 6, 2015

United States District Judge

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