On Point: j. Appeals

Dennis Thompson, Jr. v. Battaglia, 458 F. 3d 614 (7th Cir. No. 04-3110, 8/14/06)

Issue/Holding: Because (c)ounsel’s work must be assessed as a whole,” an ineffective-assistance claim is a single ground for relief for certificate of appealability purposes, though R. 2(c), Rules Governing Section 2254 Cases, does require that the petitioner specify all grounds for relief along with supporting facts.

Larry W. Myartt v. Frank, 7th Cir No 04-2115, 1/21/05Issue/Holding:

… AEDPA standards apply only to claims that were “adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d). In the instant case, the Wisconsin Court of Appeals did not address Myartt’s ineffective assistance claim, which is unsurprising because Myartt’s pro se filing failed to develop the claim or discuss relevant Sixth Amendment principles. In these circumstances,

Michael A. Sveum v. Smith, 403 F. 3d 447 (7th Cir. No. 05-1255, 3/31/05)

Issue/Holding: Denial of FRCP 60(b) motion to reopen, which was in effect a “mislabeled habeas corpus petition reasserting” previously rejected claim, required certificate of appealability. Jones v. Braxton, 392 F.3d 683, 688 (4th Cir. 2004) (district court’s dismissal of motion, on ground it is unauthorized successive collateral attack, constitutes final order within 28 U.S.C.

Alphonso Hubanks v. Frank, 392 F. 3d 926 (04-1043, 12/22/04)
For Hubanks: Robert J. Dvorak

Issue/Holding:

Habeas relief is appropriate pursuant to § 2254(d)(1) if the state court identified the right legal principle as determined by the Supreme Court but unreasonably applied that principle to the facts of the case. The standard for proving an unreasonable application of federal law, however, is more demanding than for proving an erroneous application of that law.

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.

Clyde Piggie v. Cotton, 344 F.3d 674 (7th Cir. 2003)

Issue/Holding: Requirement of certificate of appealability doesn’t apply to habeas challenge to state disciplinary proceeding, citing Walker v. O’Brien, 216 F.3d 626 (7th Cir. 2002).

Rule reaffirmed: Edward D. Anderson v. Benik, No. 05-2323, 12/20/06 But for another circuit’s rejection of this approach, creating a potentially cert-worthy split,

Terrance Bernard Davis v. Borgen, 349 F.3d 1027 ( 7th Cir. 03-2354, 11/20/03)

Issue/Holding: A certificate of appealability of dismissal of a habeas petition filed four years after the deadline is vacated:

To recap the statutory requirements: (1) A certificate of appealability may be issued only if the prisoner has at least one substantial constitutional question for appeal.

Darrell D. Cage v. McCaughtry, 305 F.3d 625 (7th Cir. 2002) 
For Cage: Calvin R. Malone

Issue/Holding: “When we make a mistake and issue a certificate of appealability that specifies an improper ground, counsel for both sides, rather than indulging a fiction of judicial infallibility, should inform us before briefing begins and ask us to amend the certificate, which is within our power because even an ‘unfounded’

Bernard L. Beyer v. Litscher, 306 F.3d 504 (7th Cir. 2002)

Issue/Holding: Certificate of Appealability required by 28 U.S.C. § 2253(c)(3) must specifically identify a substantial constitutional issue. Declaration of purely statutory issue isn’t enough, and it is incumbent on counsel to bring this defect to the appellate court’s attention. Nonetheless, this appellant is allowed to proceed, though future litigants are cautioned: “Future petitioners and their lawyers should undertake to show that a substantial constitutional issue exists,