Owens, Shawn v. Boyd, William E. ( 2000 )

  • In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 00-1521
    Shawn Owens,
    William E. Boyd, Warden,
    Western Illinois Correctional Center,
    Appeal from the United States District Court
    for the Northern District of Illinois, Eastern Division.
    No. 99 C 5366--Charles P. Kocoras, Judge.
    Argued November 15, 2000--Decided December 19, 2000
      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 June 30, 1997, when the state’s
    appellate court affirmed his conviction and
    sentence. See Gutierrez v. Schomig, No. 00-1384
    (7th Cir. Nov. 30, 2000) (time begins with final
    decision, not on the later expiration of the time
    to seek additional review). 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
    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 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
    Cir. 2000). See also Williams v. United States,
    150 F.3d 639
     (7th Cir. 1998); Young v. United
    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
    206 F.3d 731
    , 734 (7th Cir. 2000).
    Contra, United States v. Cepero, 
    224 F.3d 256
    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
      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
    pretrial statements to the police) that he
    produced the gun at the demand of his gang’s
    leader, believing that Allen would be robbed but
    not killed. Given theories of accountability
    (such as aiding and abetting, or the felony-
    murder doctrine), that belief was no defense. So
    Owens’s lawyer added (and Owens himself
    testified) that he feared violence at the hands
    of fellow gang members if he did not assist his
    leader’s plan. The trial court denied counsel’s
    request for a jury instruction on this theory of
    defense, and the state’s appellate court affirmed
    in an unpublished opinion, ruling that coercion
    is not a defense to a charge of murder. See
    People v. Glecker, 
    82 Ill. 2d 145
    411 N.E.2d 849
    (1980). The appellate court held that, although
    People v. Serrano, 
    286 Ill. App. 3d 485
    676 N.E.2d 1011
     (1st Dist. 1997), on which Owens had
    relied, permits a coercion defense to a charge of
    armed robbery, it does not allow that defense to
    a charge of murder. Deeming the legal position
    hopeless, the public defender’s office informed
    Owens that it would not seek discretionary review
    in the Supreme Court of Illinois, though the
    office explained that Owens could seek review pro
    se (a step Owens did not take).
      Owens’s current position is one of cascading
    ineffective assistance of counsel: he contends
    that trial counsel was ineffective for making a
    doomed coercion defense; that appellate counsel
    was ineffective for not arguing that trial
    counsel had been ineffective (attempting,
    instead, to vindicate trial counsel’s strategy by
    relying on Serrano); and that the public defender
    was ineffective for failing to seek discretionary
    review by the state’s highest court on the ground
    that both trial and appellate counsel had been
    ineffective. The first variation is weak: Owens
    does not tell us what better defense was
    available, given his own statements admitting
    complicity. The second can be no stronger than
    the first and seems weaker, for reliance on
    Serrano appears to be an effort to make the best
    of a bad situation. The third variation is
    frivolous, for there is no constitutional right
    to any assistance of counsel in seeking
    discretionary, third-tier review, Ross v.
    417 U.S. 600
     (1974), and shortcomings of
    counsel at that stage therefore cannot violate
    the sixth amendment. Wainwright v. Torna, 
    455 U.S. 586
     (1982). But the third variation sets up
    Owens’s contention that his federal petition is
    timely. He says that he did not realize in June
    1997 that his appointed lawyer was leaving him to
    his own devices, and that he did not appreciate
    until March 1998 that no request for
    discretionary review had been filed. Then, Owens
    contends, he spent a further nine months
    investigating what he could do about his
    situation, finally concluding in December 1998
    that he could seek collateral relief on the
    ground of ineffective assistance. According to
    Owens sometime in December 1998 was "the date on
    which the factual predicate of the claim or
    claims presented could have been discovered
    through the exercise of due diligence",
    sec.2244(d)(1)(D), and thus only then that the
    year in which to seek federal review commenced.
      Owens’s approach disregards the language of the
    statute. He proposes that the year to file a
    federal petition begins when a prisoner actually
    understands what legal theories are available.
    That is not what sec.2244(d)(1) says. First, the
    time commences when the factual predicate "could
    have been discovered through the exercise of due
    diligence", not when it was actually discovered
    by a given prisoner. Second, the trigger in
    sec.2244(d)(1)(D) is (actual or imputed)
    discovery of the claim’s "factual predicate", not
    recognition of the facts’ legal significance.
    Most federal statutes of limitations are injury-
    based. Unlike some state systems, which start the
    time only when a party knows (or should
    recognize) that a legal wrong has been done,
    federal statutes use objective indicators as
    triggers. See United States v. Kubrick, 
    444 U.S. 111
     (1979); Fujisawa Pharmaceutical Co. v.
    115 F.3d 1332
     (7th Cir. 1997); Goodhand
    v. United States, 
    40 F.3d 209
     (7th Cir. 1994);
    Tregenza v. Great American Communications Co., 
    12 F.3d 717
     (7th Cir. 1993). Section 2244(d)(1)(D)
    follows the norm for a federal statute of
    limitations. Time begins when the prisoner knows
    (or through diligence could discover) the
    important facts, not when the prisoner recognizes
    their legal significance. If sec.2244(d)(1) used
    a subjective rather than an objective standard,
    then there would be no effective time limit, as
    Owens’s case illustrates. Like most members of
    street gangs, Owens is young, has a limited
    education, and knows little about the law. If
    these considerations delay the period of
    limitations until the prisoner has spent a few
    years in the institution’s law library, however,
    then sec.2244(d)(1) might as well not exist; few
    prisoners are lawyers.
      Affirmance of Owens’s conviction in June 1997
    starts the time under sec.2244(d)(1)(A). Section
    2244(d)(1)(D) gives defendants the benefit of a
    later start if vital facts could not have been
    known by the date the appellate process ended.
    Yet the principal fact setting the stage for the
    current ineffective-assistance claim--that
    Owens’s trial counsel attempted to present a
    coercion defense--was known at trial. Likewise
    Owens knew that the attempt was unsuccessful,
    because the trial judge declined to instruct the
    jury that coercion was a defense. If Owens had a
    better defense, he knew that too (though he may
    not have understood the legal utility of facts
    that were not presented at trial). With respect
    to the claim of ineffective assistance on appeal,
    again the principal fact--that appellate counsel
    pitched his argument on Serrano rather than
    attacking the work of trial counsel--was readily
    available to Owens before the appellate decision.
    All he had to do was read the brief filed on his
    behalf. So for Owens the time specified by
    sec.2244(d)(1)(D) ends no later than that
    specified by sec.2244(d)(1)(A). Counsel’s failure
    to seek discretionary review in the state’s
    supreme court is legally irrelevant given Moffitt
    and Torna, but at all events the facts underlying
    this claim also could have been discovered by
    August 4, 1997 (the last date for a petition, see
    Ill. Sup. Ct. R. 315(b)); the lack of a petition
    was a matter of public record, which reasonable
    diligence could have unearthed. Owens almost
    certainly had actual knowledge; after all, the
    public defender’s office sent him a letter
    revealing that it would not file a petition, and
    if he didn’t understand the letter all Owens had
    to do was ask his appellate lawyer what it meant.
    Thus the very latest starting date was August 4,
    1997, and the statutory year expired long before
    Owens filed his federal petition.
      Recharacterizing Owens’s argument as a request
    for "equitable tolling" adds nothing;
    sec.2244(d)(1)(D) is itself a kind of tolling
    rule, see Taliani v. Chrans, 
    189 F.3d 597
    , 598
    (7th Cir. 1999), and it would be inappropriate
    for the judiciary to add time on a theory that
    would amount to little more than disagreement
    with the way Congress wrote sec.2244(d). Tolling
    may be available when some impediment of a
    variety not covered in sec.2244(d)(1) prevents
    the filing of a federal collateral attack, see
    Marsh v. Soares, 
    223 F.3d 1217
    , 1220 (10th Cir.
    2000), but Owens does not identify any such
      Owens believes that he can avoid sec.2244(d)(1)
    by recharacterizing his petition as a request for
    habeas corpus under 28 U.S.C. sec.2241 or coram
    nobis under the All-Writs Act, 28 U.S.C.
    sec.1651(a). Not so. Section 2244(d)(1) applies
    to every "application for a writ of habeas corpus
    by a person in custody pursuant to the judgment
    of a State court." It does not distinguish
    between applications under sec.2241 and those
    under sec.2254. Anyway, as the Supreme Court
    observed in Felker v. Turpin, 
    518 U.S. 651
    , 662
    (1996), and we reiterated in Walker v. O’Brien,
    216 F.3d 626
    , 633 (7th Cir. 2000), every
    collateral attack by a state prisoner on a final
    judgment of conviction necessarily depends on
    sec.2254. It is not possible to escape its
    limitations by citing some other statute. The
    All-Writs Act has even less to offer Owens than
    does sec.2241, because writs in the nature of
    coram nobis are limited to former prisoners who
    seek to escape the collateral civil consequences
    of wrongful conviction. United States v. Morgan,
    346 U.S. 502
     (1954); United States v. Bush, 
    888 F.2d 1145
    , 1147 (7th Cir. 1989). Persons still in
    custody must look to sec.2254 or sec.2255 for
    relief; they cannot use sec.1651(a) to escape
    statutory restrictions on those remedies.
    Carlisle v. United States, 
    517 U.S. 416
    , 428-29
    (1996); Pennsylvania Bureau of Correction v.
    United States Marshals Service, 
    474 U.S. 34
    , 43