Beyer v. Litscher, 01-1583.

Citation306 F.3d 504
Decision Date01 October 2002
Docket NumberNo. 01-1583.,01-1583.
PartiesBernard L. BEYER, Petitioner-Appellant, v. Jon E. LITSCHER, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Mark D. Brookstein (argued), Mayer, Brown, Rowe & Maw, Chicago, IL, for Petitioner-Appellant.

Warren D. Weinstein (argued), Office of Atty. General, Wisc. Dept. of Justice, Madison, WI, for Respondent-Appellee.

Before POSNER, EASTERBROOK, and EVANS, Circuit Judges.

EASTERBROOK, Circuit Judge.

A series of missteps has derailed this litigation.

Bernard Beyer is in prison on two unrelated convictions. The district court concluded that it is imperative to challenge both in a single federal collateral attack, and when Beyer failed to amend his petition challenging the first conviction to add an attack on the second, the court dismissed his separate challenge as "second or successive" within the meaning of 28 U.S.C. § 2244(b).

Next a judge of this court issued a certificate of appealability identifying a single question — "whether a prisoner serving consecutive sentences resulting from separate court judgments may bring separate petitions for writs of habeas corpus under 28 U.S.C. § 2254 without facing the bar of 28 U.S.C. § 2244, if the conviction that is the subject of the second § 2254 petition was not the subject of a prior § 2254 petition." This certificate does not comply with 28 U.S.C. § 2253(c)(3), which provides that the judge must specifically identify a substantial constitutional issue. Aware of this requirement, which was reiterated in Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), the judge who issued the certificate added that "to the extent required by [Slack], the parties' briefs should address the constitutional questions presented by Beyer's claims of ineffective assistance of counsel." But neither Congress nor the Supreme Court has required advocates to cook up constitutional issues in briefs. Both the statute, § 2253(c)(3), and Slack, 529 U.S at 483-85, 120 S.Ct. 1595, say that substantial constitutional issues must be identified by judges in certificates of appealability. If the certificate identifies such an issue, Slack held, then the judge may add a substantial statutory claim for resolution under supplemental jurisdiction. But this certificate does not identify any constitutional issue as substantial, so there was nothing to which the statutory issue could be attached. See Owens v. Boyd, 235 F.3d 356, 358 (7th Cir.2000).

At this point either side could — and both should — have brought the problem to our attention. Appellate judges reviewing requests for certificates of appealability do not have counsel's familiarity with the case (review is expedited and based on a subset of the record), and the task of drafting the order's language often is delegated to staff attorneys, who may lack appreciation of the pitfalls in collateral-review practice. Counsel could have seen at a glance that this order was problematic and called it to the issuing judge's attention. See Cage v. McCaughtry, 305 F.3d 625 (7th Cir.2002). Courts are entitled to that much assistance from members of the bar, so that remediable problems may be fixed before they cause unhappy consequences. What is more, assistance here was in both sides' interest-the state's because notice might have led us to conclude that the constitutional claim is insubstantial and bring this collateral attack to an end, see Ramunno v. United States, 264 F.3d 723 (7th Cir.2001); United States v. Marcello, 212 F.3d 1005 (7th Cir.2000), and Beyer's because notice would have avoided the risk that the appeal would be dismissed, and his chance at freedom evaporate even if he has a winning constitutional claim.

Of course, if the state had called the problem to our attention before briefing, this would not necessarily have led us to dismiss the appeal. Instead the judge who issued the certificate (or a motions panel) would have inquired whether a substantial constitutional issue is presented, and if so would have expanded the certificate to encompass it; but if there is no such issue, the case could have been concluded expeditiously. Ramunno settles these matters (and adds that if the problem goes unnoticed until after briefing, there is no jurisdictional impediment to resolution of the appeal).

Beyer's quiescence had a greater potential to cause problems, because it created a risk that even a constitutional violation would not be enough. His counsel took the view that, because the certificate did not specify any constitutional issue, they were free to limit their attention to the statutory question. After all, the certificate says that "to the extent required by [Slack], the parties' briefs should address the constitutional questions". Recognizing that neither Slack nor § 2253(c) calls for an issue to be briefed, counsel took the view that this part of the certificate was a dead letter. They did not consider the possibility that the certificate's defect, coupled with their own failure to accept the judge's invitation to brief constitutional issues, could lead to the collateral attack's demise.

The Attorney General of Wisconsin, who like Beyer had done nothing about the omission of a constitutional issue from the certificate, pounced on the equivalent omission from Beyer's brief. Relying on Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir.2002), the state contended that Beyer's failure to address any constitutional issue in his appellate brief forfeited every avenue of collateral attack, which should lead us to affirm no matter what we make of the district judge's procedural ruling. See also Clay v. United States, 30 Fed.Appx. 607 (7th Cir.2002), cert. granted on a different issue, ___ U.S. ___, 122 S.Ct. 2658, 153 L.Ed.2d 834 (2002), order amended, 2002 WL 1961270, 2002 U.S. LEXIS 5287 (U.S. Aug. 26, 2002). In both Anderson and Clay the prisoner failed to address the constitutional claim — in Clay despite being ordered by the court to do so, and in Anderson despite the specification in the certificate and a demand in the state's brief that the prisoner show that there was some point to the collateral attack. If a constitutional theory is insubstantial, it is hard to see why a court of appeals should remand, whether or not the district court took a procedural misstep. Harmless errors must be disregarded, and a gaffe that prevents a district court from addressing an insubstantial claim is harmless. If the constitutional issue turns out to be substantial, and a procedural error blocked its consideration in the district court, an appellate tribunal ordinarily would remand so that the district judge can address the substantive contention in the first instance. But it is vital for the briefs to provide information and argument enabling the appellate court to determine whether at least one constitutional issue justifies continued litigation. Even a declaration in a certificate of appealability that a given issue is substantial does not do this, for a certificate is the work of but a single judge — and, as we have stressed, usually is issued after only brief review based on a subset of the record. A merits panel is entitled to make its own decision about whether the prisoner has established a decent chance of success. When as in Anderson the prisoner steadfastly refuses to address the merits, even though the certificate of appealability specifies particular questions in need of attention, a court of appeals properly may deem the issues forfeited, which obviates any justification for remand.

Notwithstanding these considerations, a court ought not follow W.C. Fields' ukase: "Never give a sucker an even break." A litigant whose lawyer is misled by the language of a judicial order should not suffer ill consequences. Beyer's...

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