306 F.3d 504 (7th Cir. 2002), 01-1583, Beyer v. Litscher

Docket Nº:01-1583.
Citation:306 F.3d 504
Party Name:Bernard L. BEYER, Petitioner-Appellant, v. Jon E. LITSCHER, Respondent-Appellee.
Case Date:October 01, 2002
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 504

306 F.3d 504 (7th Cir. 2002)

Bernard L. BEYER, Petitioner-Appellant,

v.

Jon E. LITSCHER, Respondent-Appellee.

No. 01-1583.

United States Court of Appeals, Seventh Circuit

October 1, 2002

Argued Sept. 11, 2002.

Page 505

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.

Page 506

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...

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