Mosley v. Atchison

• Decision Date: 06 August 2012
• Docket Number: No. 12–1083.,12–1083.
• Citation: 689 F.3d 838
• Parties: Christopher MOSLEY, Petitioner–Appellee, v. Mike ATCHISON, Warden, Respondent–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

689 F.3d 838

Christopher MOSLEY, Petitioner–Appellee,

v.Mike ATCHISON, Warden, Respondent–Appellant.

No. 12–1083.

United States Court of Appeals, Seventh Circuit.

Argued June 5, 2012.

Decided Aug. 6, 2012.

Michael T. Brody, Keith V. Porapaiboon (argued), Attorneys, Jenner & Block LLP, Chicago, IL, for Petitioner–Appellee.

Katherine D. Saunders (argued), Attorney, Office of the Attorney General, Chicago, IL, for Respondent–Appellant.

Before BAUER, ROVNER, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Following a bench trial, Christopher Mosley was found guilty of first-degree murder and aggravated arson. He was sentenced to consecutive prison terms of 60 years on the murder charge and 15 years on the arson charge. After exhausting his post-conviction remedies in the Illinois state courts, Mosley filed a habeas corpus petition in federal court alleging ineffective assistance of counsel at trial. The district court granted his petition and directed the State to release Mosley unless within 30 days it either filed an appeal or announced its intention to retry him. U.S. ex rel. Mosley v. Hinsley, 2011 WL 3840332 (N.D.Ill. Aug. 26, 2011). The State has appealed, and Mosley challenges our jurisdiction over this appeal.

We have jurisdiction to hear this appeal, and we agree with the district court's determination that the state court's summary dismissal of Mosley's ineffective assistance of counsel claim was contrary to federal law clearly established by the Supreme Court of the United States. The district court had to make that decision based on the record before the state courts. See Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011); 28 U.S.C. § 2254(d). The record before the state courts consisted of the original trial record and the affidavits of two potential alibi witnesses whom Mosley's defense lawyer did not call to testify at trial. We agree with the district court that if those affidavits are true, then Mosley's lawyer provided ineffective assistance.

That determination does not, however, entitle Mosley to the grant of his petition. We also must ask whether the affidavits are in fact true, and whether there is other evidence relevant to the lawyer's decision not to call those witnesses and the prejudice that might have resulted. The district court heard additional evidence that contradicted the affidavits, but the court did not make findings on the conflicting evidence. The court believed that Cullen v. Pinholster prohibited consideration of that evidence in deciding whether Mosley's conviction was actually unconstitutional. The district court read Pinholster too broadly. Pinholster limits a district court to consideration of the state record in deciding under § 2254(d)(1) whether a state court's decision was “contrary to, or involved an unreasonable application of, clearly established Federal law....” Where a district court properly finds that a state court's decision was contrary to or involved an unreasonable application of clearly established federal law, it must still answer the question underlying § 2254(a): whether a petitioner is actually “in custody in violation of the Constitution or laws or treaties of the United States.” Pinholster does not confine a district court's decision on that ultimate question under § 2254(a) to a limited state court record. A state court's mistake in summarily rejecting a petition, i.e., without fully evaluating conflicting evidence on disputed factual issues, does not necessarily mean the petitioner is ultimately entitled to relief.

The basic point is familiar from ordinary civil cases. If a trial court has erroneously granted summary judgment to one side in a civil case, that error does not necessarily mean that the other side is entitled to judgment in its favor. Similarly here, relevant evidence was never presented to the state court before it summarily, and erroneously, dismissed the petition. The new evidence must be considered to decide the ultimate merits of the petitioner's claim. We vacate the district court's grant of Mosley's petition and remand for an evaluation of whether Mosley's counsel was in fact constitutionally ineffective. In making that evaluation, the district court shall consider any relevant evidence, whether it was presented to the state court or not. The district court should exercise its discretion in deciding whether to review the evidence the court heard in its prior evidentiary hearing, to hold a new evidentiary hearing, or both.

I. Appellate Jurisdiction

Before addressing the merits, we must consider our jurisdiction over this appeal. Mosley argues that this court lacks jurisdiction because there is actually no pending appeal to decide. When the district court granted Mosley's petition for a writ of habeas corpus, its opinion ordered the State of Illinois to release Mosley from custody unless, within 30 days from the entry of that opinion, the State announced its intention to retry Mosley or filed its notice of appeal. The separate Rule 58 judgment accompanying the order, however, omitted the 30–days language. It said only: “IT IS HEREBY ORDERED AND ADJUDGED that the court grants Christopher Mosley's petition for a writ of habeas corpus.” After the district court denied the State's Rule 59 motion to alter or amend the judgment, the State filed a timely notice of appeal.

Shortly thereafter, the State noticed that the order and the judgment did not contain the same language. On motion by the State, we remanded the case to the district court for the limited purpose of modifying the judgment nunc pro tunc to bring it into line with the district court's opinion. On February 3, 2012, the district court entered an amended judgment nunc pro tunc to conform the judgment to the opinion. Nunc pro tunc is a Latin phrase that means “now for then.” A judge can issue a nunc pro tunc order to change records to reflect what actually happened, though not to rewrite history. Justice v. Town of Cicero, 682 F.3d 662, 664 (7th Cir.2012).

Although the State had filed a timely notice of appeal from the district court's original judgment, it did not file a new notice of appeal from the February 3, 2012 judgment. Mosley argues that Circuit Rule 57 requires that a new notice of appeal be filed under these circumstances. Circuit Rule 57 provides:

A party who during the pendency of an appeal has filed a motion under Fed.R.Civ.P. 60(a) or 60(b), Fed.R.Crim.P. 35(b), or any other rule that permits the modification of a final judgment, should request the district court to indicate whether it is inclined to grant the motion. If the district court so indicates, this court will remand the case for the purpose of modifying the judgment. Any party dissatisfied with the judgment as modified must file a fresh notice of appeal.

Mosley argues that the State is still “dissatisfied with the judgment as modified” and should have filed a new notice of appeal, so that its failure to do so bars our jurisdiction over this appeal. Fogel v. Gordon & Glickson, P.C., 393 F.3d 727, 733 (7th Cir.2004) (to challenge an amended judgment, appellant must file a new notice of appeal); Fed. R.App. P. 12.1 advisory committee note (“When relief is sought in the district court during the pendency of an appeal, litigants should bear in mind the likelihood that a new or amended notice of appeal will be necessary in order to challenge the district court's disposition of the motion.”).

The State responds that because the district court amended its judgment nunc pro tunc, the original notice of appeal remains effective. The State relies on Johnson v. Acevedo, 572 F.3d 398 (7th Cir.2009), and the related district court proceedings following a Circuit Rule 57 remand in that case. In Johnson, the district court's Rule 58 judgment was defective because it stated only that the writ of habeas corpus was “conditionally granted” without specifying the condition. Id. at 400. Upon learning of this jurisdictional issue, we “put the appeal in stasis while the parties returned to the district court and obtained a proper final judgment.” Id.

To cure the jurisdictional defect in Johnson, the State filed in the district court a motion requesting an order stating the court's inclination to correct its judgment nunc pro tunc, which the district court granted. We granted the State's Circuit Rule 57 motion and remanded for the limited purpose of allowing the district court to correct the judgment nunc pro tunc. The State filed its motion to correct the judgment nunc pro tunc. The district court granted the motion and then entered an amended judgment. With the conclusion of that process, the parties had “obtained a proper final judgment” and the appeal could proceed.

The same procedure was followed here, and under the reasoning of Johnson, we have jurisdiction over this appeal. As in Johnson, the district court's judgment in this case was inconsistent with its opinion because the judgment failed to include the conditions that could delay or prevent Mosley's release. After we had already taken jurisdiction of its appeal, the State noted the error and brought it to our attention. The district court stated its inclination to correct its judgment nunc pro tunc, that is, to retroactively amend its judgment through its inherent power, and we remanded for the limited purpose of allowing it to do so, but retained jurisdiction, as permitted by Rule 12.1(b) of the Federal Rules of Appellate Procedure. See Fed. R.App. P. 12.1 advisory committee note (“The court of appeals may instead choose to remand for the sole purpose of ruling on the motion while retaining jurisdiction to proceed with the appeal after the district court rules on the motion....”). The district court's February 3, 2012 judgment thus had retroactive legal effect back to August 26, 2011, and this appeal remained pending. A new notice of appeal was unnecessary. The State's January 12, 2012 notice of appeal was...