United States District Court, S.D. Illinois
DEMETRIUS M. NICHOLS, # N-61355, Petitioner,
WARDEN OF ILLINOIS RIVER CORRECTIONAL CENTER, Respondent.
MEMORANDUM AND ORDER
J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE.
before the Court is Respondent's Motion to Dismiss for
Lack of Jurisdiction (Doc. 12). The Court appointed the
Federal Public Defender to represent Petitioner Demetrius H.
Nichols (Doc. 13), and counsel responded to the motion (Doc.
17). Respondent filed a reply (Doc. 21).
asserts that the dismissal of Nichols's 2009 habeas
corpus action filed in this Court (Nichols v. People of
the State of Illinois, No. 09-cv-801-DRH) renders the
instant action successive and deprives this Court of
jurisdiction to hear the instant Petition because Nichols did
not obtain authorization from the appellate court to file it.
Both the 2009 action and the instant Petition challenge
Nichols's 2006 aggravated battery conviction in Perry
County, Illinois (People v. Nichols, No. 06-CF-32),
for which he was sentenced to 5 years. Nichols counters
that the summary dismissal of the 2009 petition should not
count for purposes of 28 U.S.C. § 2244(b) so as to
render the current Petition second or successive.
2009 habeas petition was dismissed upon preliminary
consideration under Rule 4 of the Rules Governing Section
2254 Cases in the United States District Courts. (Doc. 13 in
Nichols v. Illinois, No. 09-cv-801-DRH; also filed
as Doc. 12-2 in the instant case). The “rambling
petition” appeared to challenge Nichols's
conviction on the basis that the victim of the assault had
subsequently died, and the presiding judge in the case was
also deceased. (Doc. 12-2, p. 2). This Court observed
that “Nichols provides no legal authority for his
arguments, nor does he suggest that he exhausted his state
court remedies with respect to his conviction.”
Id. After discussing the exhaustion requirement and
procedural default, the Court concluded:
Nichols presents no assertions or documentation to indicate
that he has challenged this conviction through the appellate
courts in the state of Illinois, nor does he present any
viable constitutional claim regarding the validity of this
conviction. Therefore, this habeas action does not survive
review under Rule 4.
(Doc. 12-2, p. 3). The Court then dismissed the 2009 habeas
action with prejudice.
responding to the motion to dismiss, Nichols argues that this
2009 dismissal did not represent a disposition based on the
merits, nor did the Court find that Nichols failed to exhaust
his state remedies or that the petition was inexcusably
untimely. (Doc. 17, pp. 5-6). Rather, the stated reasons for
the dismissal pointed to deficiencies in the pro se
petition that were potentially curable in an amended
pleading. As such, the summary disposition of the 2009
petition cannot be considered to have afforded Nichols a
“full and fair opportunity” to litigate his
federal habeas claims, particularly in light of Nichols's
assertions that he has been impaired by mental illness and
intellectual challenges. (Doc. 17, pp. 6-7).
counters that the “with prejudice” dismissal of
Nichols's 2009 petition operated as a denial on the
merits, therefore only the Seventh Circuit can authorize
Nichols to bring a second or successive habeas action. (Doc.
21, pp. 1-2).
examination of this Court's two-and-a-half-page order
dismissing the 2009 petition reveals that nowhere did the
Court describe the dismissal as being “on the
merits.” (Doc. 12-2). The same is true of the Judgment,
which states that the petition “is summarily dismissed
with prejudice.” (Doc. 14 in Nichols v.
Illinois, No. 09-cv-801-DRH). To be sure, as a term of
art, a dismissal “with prejudice” ordinarily has
the legal effect of signifying a dismissal on the merits.
See Pavlovsky v. VanNatta, 431 F.3d 1063, 1064 (7th
Cir. 2005); Phillips v. Shannon, 445 F.2d 460, 462
(7th Cir. 1971) (dismissal with prejudice constitutes a
disposition on the merits for purposes of res
judicata); but see O'Connor v. United
States, 133 F.3d 548, 549-51 (7th Cir. 1998) (habeas
petitions “returned” as insufficient under the
rules governing motions for habeas relief do not
“count” as initial petitions). In this case,
however, to resolve the question of whether the 2009
dismissal counts as a “denial on the merits”
based on the “with prejudice” language alone
would elevate form over substance.
the order in its entirety, the summary dismissal of the 2009
petition pursuant to Rule 4, while correct, cannot be
considered to have afforded Nichols a “full and fair
opportunity” to bring a federal collateral attack on
his conviction in the 2009 action. Most of the order is
devoted to an explanation of the exhaustion requirement and
procedural default, concluding with the observation that
Nichols's petition failed to indicate that he made any
attempt to exhaust his state court remedies before seeking
habeas relief. The Court further noted that the petition
presented no supporting legal authority or a viable
constitutional claim. That brief conclusion justifies
dismissal of the petition, but it does not represent that
Nichols had a “full and fair opportunity” to
litigate his federal habeas claims.
the Court would dismiss a petition with these deficiencies
without prejudice and with leave to amend, precisely
for the reasons articulated by Nichols in his response - the
defects are potentially curable by amendment and/or by
pursuing exhaustion of the claims in state court. Why that
was not the disposition in the 2009 case is unclear. This
Court concludes, however, that Nichols did not obtain the
“one clean shot at establishing his entitlement to
relief in a federal habeas corpus proceeding” to which
he was entitled, see Pavlovsky, 431 F.3d at 1064,
when his 2009 pro se petition was summarily
dismissed without affording him the opportunity to amend. The
Court did not dismiss Nichols's 2009 habeas petition on
the merits or for some incurable defect, thus it does not
count as a fully-adjudicated first habeas petition. See
Altman v. Benik, 37 F.3d 764, 766 (7th Cir. 2003)
(“For purposes of § 2244(b), we do not count
previous petitions that were dismissed for technical or
procedural deficiencies that the petitioner can cure before
refiling.”). Accordingly, the instant habeas Petition
(Doc. 1) is not “second or successive” within the
meaning of 28 U.S.C. § 2244(b), and this Court has
jurisdiction to consider it.
these reasons, Respondent's Motion to Dismiss Habeas
Petition for Lack of Subject Matter ...