Hardison, ODell v. Strohn, Don

Filing 6

Transmission of Notice of Appeal, Order, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re 5 Notice of Appeal. (Attachments: # 1 Order, # 2 Judgment, # 3 Docket Sheet) (nln),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

ODELL M. HARDISON,
Petitioner,
v.

OPINION & ORDER
17-cv-961-jdp

DON STROHN,
Respondent.

Pro se 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.
The 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.

BACKGROUND
I draw 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).

In 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
extended supervision.
Hardison 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).

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ANALYSIS
The 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, 2010).
A 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

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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.
Because 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.
Hardison 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.

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ORDER
IT IS ORDERED that:
1. Petitioner Odell M. Hardison’s petition for writ of habeas corpus, Dkt. 1, is
DISMISSED for lack of authorization to file a successive petition.
2. Petitioner’s motion for a certificate of appealability, Dkt. 2, is DENIED. If
petitioner wishes, he may seek a certificate from the court of appeals under Fed.
R. App. P. 22.
Entered January 26, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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