Hardin v. Richardson

Filing 2

ORDER ENTERED: This action is dismissed and all relief denied, without prejudice, for lack of jurisdiction and as frivolous. The court certifies that any appeal from this order is not taken good faith. Signed by Senior District Judge Richard D. Rogers on 12/9/2011. Mailed to pro se party Dennis-Ray Hardin by regular mail (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DENNY-RAY HARDIN,
Petitioner,
v.

CASE NO.

11-3180-RDR

SHELTON RICHARDSON,
Warden, et al.,
Respondents.
O R D E R
This petition for writ of habeas corpus was filed pursuant to
28 U.S.C. § 2241 by an inmate of the Leavenworth Detention Center,
Leavenworth, Kansas.

The filing fee has been paid.

As the factual background for this Petition, Mr. Hardin alleges
as follows.

He is confined at the LDC due to federal charges

brought against him in the United States District Court for the
Western District of Missouri.

The “secret indictment” by federal

authorities was issued against him while he was in the custody of
Missouri state officials for probation violations.

He states that

there has been no judgment or sentencing on the federal charges, but
“only an order” finding him guilty entered on September 14, 2011.
He claims that he has been denied many constitutional rights during
the federal proceedings, such as the right to testify at a trial and
to subpoena witnesses and that the court lacked jurisdiction.1
1

He

Mr. Hardin’s challenge to the Missouri federal court’s jurisdiction
appears to be based upon the utterly frivolous contention that he is “a dejure
soverign (sic) State Citizen of one of the several states of the republic
(Missouri)” and not a United States citizen, with references to the Uniform
Commercial Code and Bible passages. Petition (Doc. 1) at 6, 12. The pages of
personal affidavits he offers in support are equally frivolous.
Petitioner’s claims of failure to prosecute and denial of his right to a
speedy trial must be litigated on direct appeal. Any claim of cruel and unusual
conditions and physical injury that occurred during Mr. Hardin’s pretrial
confinement within another federal judicial district must be litigated by filing
a civil complaint in the appropriate state or federal court against the person or
persons that caused the alleged conditions. Claims of denial of access by court

alleges that he has filed a notice of appeal to the Eighth Circuit,
but then alleges that there has been no judgment so it has not been
sent.

He demands his immediate release and “complete discharge”

from custody.2
To the extent that Mr. Hardin is attempting to challenge the
findings of the Western District of Missouri court during criminal
proceedings, he must first do so by direct appeal to the Eighth
Circuit Court of Appeals after judgment has been entered.

If he

fails to properly present all his claims on direct appeal, he risks
losing any right those have those claims heard.

Petitioner’s post-

appeal remedy is by motion pursuant to 28 U.S.C. § 2255, which may
only

be

filed

in

the

sentencing

court.

This

court

has

no

jurisdiction to review criminal proceedings conducted by a federal
court in another judicial district.

The fact that Mr. Hardin is

confined within this judicial district does not give this court
jurisdiction over such challenges.
The court takes judicial notice of U.S. v. Hardin, Case No.
4:10-cr-00131-GAF,
psychological

which

evaluation

indicates
of

the

that

the

defendant

court

(Doc.

ordered

18),

that

a
a

competency hearing was conducted, and that Mr. Hardin was found
incompetent to proceed.
treatment

on

October

6,

He was committed for hospitalization and
2010

(Doc.

37).

Following

a

second

competency hearing, on May 23, 2011, Mr. Hardin was found competent

personnel in other states are also outside this court’s jurisdiction.
2

To the extent Mr. Hardin may be attempting to seek restitution, this
is again the wrong jurisdiction. In any event, such a claim is premature. Money
damages claims based upon illegal confinement are barred unless and until the
prisoner has had his conviction overturned. Heck v. Humphrey, 512 U.S. 477, 487
(1994). Moreover, judges and prosecutors are absolutely immune to suit for money
damages for acts taken within their official capacities.

2

to stand trial.

He has elected to represent himself, and has filed

numerous pro se motions.

His motion to suppress was heard and

denied and his motion to dismiss for lack of jurisdiction was denied
on September 7, 2011 (Doc. 169).

Mr. Hardin refused to participate

on the date his case was originally set for trial; however, a bench
trial was begun on September 12, 2011 and completed on September 14,
2011 (Docs. 176, 178).
2011 (Doc. 179).

Mr. Hardin was found guilty on September 14,

The court repeats that his recourse is to properly

file and pursue his direct appeal.
The court finds that this action is frivolous and states no
ground for relief in this court.

The court further finds that no

purpose would be served by allowing petitioner the opportunity to
amend or otherwise respond.
IT IS THEREFORE ORDERED that this action is dismissed and all
relief is denied, without prejudice, for lack of jurisdiction and as
frivolous.
IT IS FURTHER ORDERED that the court certifies that any appeal
from this Order is not taken in good faith.
IT IS SO ORDERED.
DATED:

This 9th day of December, 2011, at Topeka, Kansas.

s/RICHARD D. ROGERS
United States District Judge

3