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Hardison v. Strahota

United States Court of Appeals, Seventh Circuit

February 6, 2018

ODELL M. HARDISON JR. Plaintiff,
v.
DON STRAHOTA, (Warden) Defendant,

          ODELL M. HARDISON JR. Pro Se

          MOTION FOR CERTIFICATE OF APPEALABILITY PURSUANT TO 28 USC § 2253, RULE 22 F.R.A.P., AND SEVENTH CIRCUIT RULE 22-1 (d)

         I. INTRODUCTION

         The Plaintiff, ODELL M. HARDISON JR., a prisoner proceeding pro-se, and a citizen of the United States motion this Court seeking a Certification of Appealability pursuant to Rule 22 F.R.A.P, and Seventh Circuit Court Rule 22-l(d), that permit the Petitioner to appeal in the Eastern District

         The Plaintiff has made a substantial showing of the denial of his constitutional rights 28 USC §2253, and Seventh Circuit Rule 22-l(d), for a Certification of Appealability, II. ISSUES ON WHICH COA IS SOUGHT

1. The Wisconsin State court erred in failing to grant the, proper motion and grant appropriate relief. Evidentiary Hearing on Petitioner's claims of insufficiency of evidence, ineffective assistance of counsel (a) miscarriage of justice, as regards counsel's failure to conduct a competent pre-trial investigation.

         III LEGAL STANDARD FOR ISSUANCE OF COA

         The Antiterrorism and Effective Death Penalty Act ("AEDPA") provides that, in order to taken an appeal from a final order denying habeas corpus, a Certification of Appealability must be obtained from a circuit court justice or from the district court judge. 28 U.S.C. §2253, subd. (c](l]. In the Supreme Court decision in Miller-El v. Cockrell. 537 U.S. 322, 125 S.Ct. 1029 (2003), the court clarified the standards for issuance of a COA.

         In order to obtain a COA, the petitioner must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. §2253(c) (2). However, the petitioner need not show that he should prevail on the merits, Lambright v. Stewart. 220 F.3d 1022, 1025 (9th Cir. 2000) (en banc) [O]bviously the petitioner need not show that he should prevail on the merits. He has already failed in that endeavor"]. Rather, the petitioner is merely required to make the "modest" showing (Lambright. supra, at 1025) that "reasonable jurists would find the district court's assessment of the constitutional claim debatable or wrong." Slack v. McDaniel. 529 U.S 473, 484 (2000). As explained by the Ninth Circuit in Jennings v. Woodford. 290 F.3d 1006 (9th Cir. 2002) the substantial showing standard required for a COA is "relatively low." Id., at 1011, citing Slack supra. Hence a COA must issue if any of the following apply: [1) the issues are debatable among reasonable jurist; (2) another court could resolve the issue differently; or (3) the question raised are adequate enough to encourage the petitioner to proceed further. Finally, "The court must resolve doubts about the propriety of a COA in the petitioner's favor." Jennings, supra, citing Lambright, supra, at 1025."

         IV. ARGUMENT SUPPORTING ISSUANCE OF COA

         REASONABLE JURISTS COULD DIFFER AS TO WHETHER THE SUFFICINECY OF EVIDENCE.

         On May 11 2004, the second day of trial (OUTSIDE THE PRESENCE OF THE UIRYI District Attorney Paul Sanders disclosed to the Court that the MILWAUKEE POLICE DEPARTMENT DESTROYED THE EVIDENCE ALLEGED USED IN COUNT 3. See Tr. Pg. 3-4. In conjunction with count 2 that manifested NO PRABABLE CAUSE THAT HARDISON COMMITTED ANY CRIME. That another individual was apprehended with the alleged prerecorded monies. See detention/police report (I compared this money with the prerecorded money used to purchase cocaine on a prior occasion, of the $850.00 used on a previous buy $840.00 of the money in Mr. Words pocket was the money used to purchase cocaine...) He established that the violation was a significant factor in the State obtaining a conviction, WITHOUT EVIDENCE. This destruction of the evidence manifests cause and prejudice.. Hence a COA must issue if any of the following apply: (1) the issues are debatable among reasonable jurist; (2) another court could resolve the issue differently; or (3) the question raised are adequate enough to encourage the petitioner to proceed further, Hardison's issues has meet the Slack supra requirement. Wisconsin State Court's immediately barred these claims, under State v. Escalona- Naranjo, 185 Wis, 2d 168, 517 N.W, 2d 157(1994), without any decision or Order to explain the serious violation of the law.

         Equal protection and Due Process of law entitles the Petitioner to be heard pursuant to the Wisconsin Constitution Art 1, Sec and the Fourteenth Amendment to the United States Constitution, Based on the fact that the petitioner was served with a fundamentally defective complaint then an amended fatal complaint then tried for delivery of cocaine without the evidence at trial (See) Brady v. Maryland. 373 U.S. 83, 83 (1963), from the February 27, transaction, (count 3) of the amended complaint. Also tried on for the March 8, 2002 alleged transaction, (count 2) without any probable cause, that completely frustrated the hold case. Hardison's substantial showing of the denial of a constitutional right, " No "reasonable jurists would find the State court's assessment of the constitutional claim debatable or wrong." Slack supra.

         The trial court lacked subject matter jurisdiction (See) Giordenello v.United States, Sense the complaint is defective and deprived the trial court of subject matter jurisdiction, the petitioner's challenge is not waived or procedurally barred and can be brought at any time, (See) Harris v. United States. 149 F.3d 1304 (11th Cir. 1998).

         REASONABLE JURISTS COULD DIFFER AS TO WHETHER ...


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