Owens v. Boyd et al, No. 00-1521

CourtU.S. Court of Appeals — Seventh Circuit
Writing for the CourtBefore Posner, Easterbrook, and Kanne; Easterbrook
Citation235 F.3d 356
Parties(7th Cir. 2000) Shawn Owens, Petitioner-Appellant, v. William E. Boyd, Warden, Western Illinois Correctional Center, Respondent-Appellee
Docket NumberNo. 00-1521
Decision Date19 December 2000

Page 356

235 F.3d 356 (7th Cir. 2000)
Shawn Owens, Petitioner-Appellant,
v.
William E. Boyd, Warden, Western Illinois Correctional Center, Respondent-Appellee.
No. 00-1521
In the United States Court of Appeals For the Seventh Circuit
Argued November 15, 2000
Decided December 19, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 99 C 5366--Charles P. Kocoras, Judge.

Page 357

Before Posner, Easterbrook, and Kanne, Circuit Judges.

Easterbrook, Circuit Judge.

A state prisoner who wants collateral relief from federal court must file the federal petition within one year from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. sec.2244(d)(1). For Shawn Owens, who has been convicted of murder and sentenced to 50 years in prison, the conclusion of direct review occurred on August 5, 1997, thirty-five days after the state's appellate court affirmed his conviction and sentence. See Ill. Sup. Ct. R. 315(b) (allowing a maximum of 35 days to file a petition for leave to appeal to the state's highest court). Cf. Gutierrez v. Schomig, 233 F.3d 490 (7th Cir. 2000) (holding that the approach of 2244 (d) (1)(A), which includes tiem for seeking additional review on direct appeal, does not apply to 2244 (d) (2), which deals with time devoted to seeking collateral relief in state court). Nothing more happened until March 18, 1999, when Owens sought postconviction review in state court. A state judge denied this petition without explanation. One possible reason: the petition was untimely under state law. See 725 ILCS 5/122-1(c). Owens did not appeal. Because the state petition was untimely, 28 U.S.C. sec.2244(d)(2) did not exclude even the short time it was pending. See Artuz v. Bennett, 121 S. Ct. 361, 364 & n.2 (U.S. Nov. 7, 2000); Freeman v. Page, 208 F.3d 572 (7th Cir. 2000). Five months later, in August 1999, Owens commenced this proceeding under 28 U.S.C. sec.2254. Again he lost. The district court held that the petition had been filed too late. 2000 U.S. Dist. Lexis 606 (N.D. Ill. Jan. 19, 2000).

After denying the petition, the district court issued a certificate of appealability identifying the application of

Page 358

sec.2244(d)(1) as the issue for appeal. This was a mistake. "A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right . . . [and the certificate] shall indicate which specific issue or issues satisfy [that] showing". 28 U.S.C. sec.2253(c)(2), (3). Whether a given petition is timely is a question under sec.2244, not under the Constitution, and therefore an error in treating a collateral attack as untimely is not enough to support a certificate of appealability. United States v. Marcello, 212 F.3d 1005 (7th Cir. 2000). See also Williams v. United States, 150 F.3d 639 (7th Cir. 1998); Young v. United States, 124 F.3d 794, 798-99 (7th Cir. 1997).

If the prisoner's underlying constitutional objection to his conviction is itself substantial, then the district court may issue a certificate on that issue (even though the petition was denied without reaching it) and append the statutory ground as an antecedent issue to be resolved on appeal if it, too, is substantial. See Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000). That way prisoners with strong constitutional claims won't be stymied by debatable decisions on statutory obstacles. As is often the case, however, the parties ignored this certificate's shortcoming and proceeded to brief only the statutory question. Owens has not attempted to demonstrate that his constitutional claim (ineffective assistance of counsel in the state proceedings) would support a certificate of appealability, nor did the district court's opinion hint that it viewed this theory of relief as substantial, so we are not inclined to add a constitutional subject to the certificate in order to rescue matters. Still, Young holds and Marcello reiterates that a defect in a certificate of appealability is not a jurisdictional flaw. See also Romandine v. United States, 206 F.3d 731, 734 (7th Cir. 2000). Contra, United States v. Cepero, 224 F.3d 256 (3d Cir. 2000) (proper certificate of appealability is essential to appellate jurisdiction). Because the state has ignored the limitations that sec.2253(c)(2) places on a court's power to issue a certificate of appealability, it has forfeited the benefits of that statute. We proceed to resolve the issue certified by the district court.

Jerome Allen was shot in the head in January 1993. Owens supplied the gun (an AK-47) that fired the bullets, and he may have pulled the trigger. At trial Owens testified (consistent with his...

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479 practice notes
  • Taite v. Stewart, CIVIL ACTION NO. 13-00322-CG-N
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • June 28, 2015
    ...2244(d)(1)(A) only if vital facts could not have been known." (second internal quotation marks and alteration omitted)); Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000) ( "Section 2244(d)(1)(D) gives defendants the benefit of a later start if vital facts could not have been known by the da......
  • Whiteside v. United States, No. 13–7152.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 8, 2014
    ...it altered the legal significance of Whiteside's prior convictions without amending the convictions themselves. See Owens v. Boyd, 235 F.3d 356, 359 (7th Cir.2000) (“Time begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recogniz......
  • U.S. v. Crowell, No. 03-30041.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 30, 2004
    ...if the petitioner fails to meet AEDPA's requirements), cert. denied, 537 U.S. 1022, 123 S.Ct. 544, 154 L.Ed.2d 431 (2002); Owens v. Boyd, 235 F.3d 356, 360 (7th Cir.2000) (precluding coram nobis as a means available to avoid statutory restrictions on federal habeas relief); United States v.......
  • Holmes v. Spencer, No. 09–2431.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 16, 2012
    ...a matter of law, i.e., his constitutional right not to testify. The latter is beyond the scope of § 2244(d)(1)(D).”); Owens v. Boyd, 235 F.3d 356, 359 (7th Cir.2000) (“Unlike some state systems, which start the [limitation period] only when a party knows (or should recognize) that a legal w......
  • Request a trial to view additional results
479 cases
  • Taite v. Stewart, CIVIL ACTION NO. 13-00322-CG-N
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • June 28, 2015
    ...2244(d)(1)(A) only if vital facts could not have been known." (second internal quotation marks and alteration omitted)); Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000) ( "Section 2244(d)(1)(D) gives defendants the benefit of a later start if vital facts could not have been known by the da......
  • Whiteside v. United States, No. 13–7152.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 8, 2014
    ...it altered the legal significance of Whiteside's prior convictions without amending the convictions themselves. See Owens v. Boyd, 235 F.3d 356, 359 (7th Cir.2000) (“Time begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recogniz......
  • U.S. v. Crowell, No. 03-30041.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 30, 2004
    ...if the petitioner fails to meet AEDPA's requirements), cert. denied, 537 U.S. 1022, 123 S.Ct. 544, 154 L.Ed.2d 431 (2002); Owens v. Boyd, 235 F.3d 356, 360 (7th Cir.2000) (precluding coram nobis as a means available to avoid statutory restrictions on federal habeas relief); United States v.......
  • Holmes v. Spencer, No. 09–2431.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 16, 2012
    ...a matter of law, i.e., his constitutional right not to testify. The latter is beyond the scope of § 2244(d)(1)(D).”); Owens v. Boyd, 235 F.3d 356, 359 (7th Cir.2000) (“Unlike some state systems, which start the [limitation period] only when a party knows (or should recognize) that a legal w......
  • Request a trial to view additional results

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