On Point: j. Appeals

7th circuit court of appeals decision

Habeas – Certificate of Appealability

We pause briefly to note the district court’s error in denying a certificate of appealability in this case. The statute provides that a certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has interpreted this language to require a showing that “reasonable jurists could debate whether (or,

7th circuit decision, on habeas review of summary orders in 2001AP168 (§ 809.30 appeal) and 2003AP2332 (§ 974.06 appeal)

Due to the nature of the issues and length of discussion, this case will be canvassed in multiple posts. Part I (IAC – adequate provocation defense) is here; Part III (evidentiary hearing, GP advice), here.

Habeas – Procedural Fault

Kerr’s pro se § 974.06 motion asserted ineffective assistance of counsel as a ground for relief.

Docket

Decision below (3rd Cir No. 07-2163, 5/28/10)

Question Presented (by Scotusblog):

For purposes of adjudicating a state prisoner’s petition for federal habeas relief, what is the temporal cutoff for whether a decision from this Court qualifies as “clearly established Federal law” under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996?

Cert petition

Here’s the pitch Greene successfully made:

This case presents a fundamental question of federal habeas procedure in the post-AEDPA world: What is the temporal cutoff for when decisions from this Court count as “clearly established Federal law”?

Felkner v. Steven Frank Jackson, USSC No. 10-797, 3/31/11

On habeas review under 28 U.S.C. § 2254, the court of appeals failed to give sufficient deference to the state court determination that the prosecutor had race-neutral reasons for striking 2 of 3 black prospective jurors.

The prosecutor struck one juror because she had an MSW, and the prosecutor didn’t like having social workers on the jury;

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,

Donald Calloway v. Montgomery, 512 F. 3d 940, No. 07-1148, 1/14/08

Issue/Holding: Where the Supreme Court has expressly declined to rule on the issue (or on one in a very similar) context) to the issue on habeas review, there is no clearly established precedent within the meaning of AEDPA.

Andrew Lockhart v. Chandler, 446 F.3d 721 (7th Cir 2006) (challenge to lack of knowledge of mandatory additional term of supervised release not cognizable) followed.

Allen A. Muth v. Frank, 412 F.3d 808 (7th Cir 2005)

Issue/Holding: AEDPA requirement of state court adjudication on merits requires neither “well-articulated or even correct decision”; state court need not offer any reasons, so that summary disposition would satisfy requirement. In short: it “is perhaps best understood by stating what it is not: it is not the resolution of a claim on procedural grounds.”

Followed: Joseph M.

Michael Allen Lambert v. Buss, 489 F.3d 779 (Nos. 03-1015 & 05-2610, 6/12/07)

Issue/Holding: A motion to recall the mandate is subject to successive-petition restrictions.

Rufus West v. Schneiter, 485 F. 3d 393 (7th Cir. 5/4/07)

Issue/Holding: “we now join the other circuits that have considered this issue and hold that §2253(c)(1) requires a certificate of appealability for any appeal in a proceeding under §2255 or where ‘the detention complained of arises out of process issued by a State court.’”

The court acknowledges that “(a) notice of appeal acts as a request for a certificate whether or not the prisoner files a separate application,”

Edmund Ingram v. Jones, 507 F. 3d 640 (Nos. 06-2766 & 06-2879, 11/14/07)

Issue/Holding: If a prison has a “legal mailing system,” and the inmate isn’t obligated to pay postage for legal mail, then the notice of appeal may be deemed filed when deposited in the system even without prepaid postage. However, “if a prison does not have a legal mailing system, the prisoner is required to show,