On Point blog, page 32 of 32
Federal Habeas Procedure – Appellate – Certificate of Appealability – Erroneous Issuance
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’
Federal Habeas Procedure — Appellate — Certificate of Appealability
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,
(State) Habeas Corpus – Generally
State ex rel. Fuentes v. Wisconsin Court of Appeals, 225 Wis. 2d 446, 593 N.W.2d 48 (1999)
For Fuentes: Robert T. Ruth
Issue/Holding:
¶6. The availability of habeas corpus relief arises out of the common law and is guaranteed by both the state2 and federal3 constitutions as well as by statute.4 Although a habeas corpus petition normally arises out of criminal proceedings, it is a separate civil action founded upon principles of equity.
(State) Habeas Corpus — Remedy for Court of Appeals’ Clerical Error Causing Loss of Petition for Review Deadline
State ex rel. Fuentes v. Wisconsin Court of Appeals, 225 Wis. 2d 446, 593 N.W.2d 48 (1999)
For Fuentes: Robert T. Ruth
Issue/Holding: Court of appeals’ “clerical error” (failure to mail appellate counsel a copy of its decision affirming conviction) which led to loss of deadline for filing petition for review in supreme court held remediable through writ of habeas corpus.
(State) Habeas corpus – right to raise statutory violation
State ex rel. Michael J. Hager v. Marten, 226 Wis.2d 687, 594 N.W.2d 791 (1999), affirming unpublished decision
For Hager, Gerhardt F. Getzin, SPD, Wausau
Issue/Holding: “(A) question of statutory interpretation may be considered on a writ of habeas corpus only if noncompliance with the statute at issue resulted in the restraint of the petitioner’s liberty in violation of the constitution or the court’s jurisdiction,” ¶ 2.