On Point blog, page 1 of 1
Court of appeals had no jurisdiction to review district court’s dismissal of habeas petition without prejudice
Robert Gacho v. Kim Butler, 7th Circuit Court of Appeals No. 13-3911, 7/2/15
The dismissal of Gacho’s habeas petition without prejudice to refiling makes the dismissal order non-final; because the court of appeals’ jurisdiction extends only to final orders, his appeal is dismissed.
Person committed as sexually violent person can’t collaterally attack underlying criminal conviction after sentence has expired
Kevin Stanbridge v. Gregory Scott, Seventh Circuit Court of Appeals Nos. 14-1548 & 14-2114, 6/29/15
While Stanbridge’s prior sexual abuse conviction is a necessary predicate for his current confinement as a sexually violent person, once the sentence for the conviction expired he is no longer “in custody” for that conviction for purposes of bringing a collateral attack against the conviction.
Christopher Mosley v. Atchison, 7th Cir No. 12-1083, 8/6/12
Habeas Procedure – Appellate Jurisdiction
Where a party has filed a timely notice of appeal to a judgment, and the district court subsequently enters an amended judgment nunc pro tunc (“now for then”) conforming language in the original judgment, an amended notice of appeal isn’t necessary to confer appellate jurisdiction:
… The district court’s February 3, 2012 judgment thus had retroactive legal effect back to August 26,
Richard M. Fischer v. Van Hollen, 741 F. Supp. 2d 944, 960 (E.D. Wis. 2011)
district court decision, denying respondent’s motion to amend judgment granting habeas relief (post on original grant, here).
Habeas – State’s Waiver
The State’s failure to raise certain arguments, prior to grant of 2254 relief, waived its right to press those points on a Rule 59 motion to amend the judgment granting relief.
The respondent in this case, like in most petitions for a writ of habeas corpus,
Federal Habeas Procedure – Appellate: Non-Final Order (Dismissal with Leave to Re-file After Exhausting State Remedies)
Alan O. Moore, Sr. v. Mote, 368 F. 3d 754 (7th Cir. No. 03-3213, 5/17/04)
Issue/Holding: Dismissal with leave to refile following exhaustion of state court remedies doesn’t support a notice of appeal:
Generally, this court has jurisdiction only to review final judgments, 28 U.S.C. § 1291. The district court’s order dismissing the case without prejudice is not final because it explicitly contemplates the court’s continuing involvement in the case ….This court has held that there are “special circumstances” under which the dismissal of a case without prejudice may constitute a final appealable order.