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Barnett v. Neal

United States Court of Appeals, Seventh Circuit

June 20, 2017

Anthony Barnett, Petitioner-Appellant,
Ron Neal, Superintendent, Indiana State Prison, Respondent-Appellee.

          Argued April 21, 2017

          Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:10-cv-157 - Theresa L. Springmann, Chief Judge.

          Before Wood, Chief Judge, Sykes, Circuit Judge, and Coleman, District Judge. [*]

          WOOD, Chief Judge.

         For more than a decade, Anthony Barnett has been trying to set aside his Indiana convictions for felony battery, felony burglary, felony intimidation, and being a habitual criminal. He thought that he had achieved success when the federal district court issued a conditional writ of habeas corpus in response to his petition, but the writ promised less than he thought. It offered the state the choice between releasing him outright, or giving him a new direct appeal in the state court. A procedural snarl ensued, at the end of which the district court gave the state extra time to seek the new appeal. Believing that he now has an unconditional right to immediate release, Barnett has appealed. We conclude that the district court was entitled to handle the matter as it did, and so we affirm its judgment.


         Barnett's underlying crimes have little to do with this appeal, which centers instead on some Indiana rules of criminal procedure and his federal habeas corpus action. We therefore omit any discussion of the underlying crimes. On December 13, 2002, the state returned a single charge of felony battery against Barnett. At that time, Indiana courts established an "omnibus date" in criminal cases; substantive amendments to charges had to be submitted no later than 30 days before that date. See Shaw v. Wilson, 721 F.3d 908, 911 (7th Cir. 2013) (citing Ind. Code § 35-34-1-5 (1982)). The trial court set the omnibus date for January 7, 2003, and so the last day for substantive amendment was December 8, 2002. Notwithstanding that fact, in February 2003 the prosecutor added felony burglary, felony intimidation, and habitual offender charges to the case. No one-in particular Barnett's trial counsel-seemed to notice the procedural misstep, and Barnett was later convicted on all charges and sentenced to 80 years' imprisonment. Barnett appealed, but his appellate lawyer also overlooked this problem.

          Barnett, however, realized that he had an issue worth pursuing, and he did just that in both state post-conviction proceedings and in a petition for a writ of habeas corpus under 28 U.S.C. § 2254. He was unsuccessful until, just after the district court denied his section 2254 petition, this court released Shaw, which issued a writ of habeas corpus for an Indiana petitioner on precisely the same theory Barnett was pursuing. By that time, Barnett's case had reached this court. We remanded it to the district court for reconsideration in light of Shaw, and the district court granted relief in an order dated June 1, 2015. The language of that order is critical to the present appeal: it said "[w]ithin 120 days of this Order, the State must either release the Petitioner or grant him leave to file a new direct appeal with the assistance of counsel."

         Barnett waited to see what would happen. When the state had done nothing as of September 29, 2015 (the 120-day mark), he took swift action. The very next day, he filed a request for immediate release. Indiana responded later that day. It asserted that it had misunderstood the June 1 order "as requiring the state courts to grant [Barnett] a new appeal upon his request." The state also reported that simultaneously with its response to Barnett's motion for immediate release, it had filed a request for a direct appeal in the state courts on Barnett's behalf. It asked the district court to extend the release date for 30 days so that the Indiana Court of Appeals would have time to decide whether to grant the new appeal. In an order dated October 14, 2015, the district court granted the state's request and extended the time to comply with the conditional writ to October 29, 2015.

         The next day, October 15, 2015, Barnett filed a motion purportedly under Federal Rule of Civil Procedure 59(a) to alter or amend the October 14 order. His motion once again sought immediate release. The court denied that motion in an order dated November 12, 2015, because the state had notified it that on October 27, 2015, the Indiana Court of Appeals had granted leave for Barnett to file a new appeal and had ordered a hearing in the trial court for purposes of appointing counsel for Barnett.

         Barnett filed a Notice of Appeal in this court from the district court's October 14 order granting the state extra time to comply with the conditional writ, and from its November 12 order denying reconsideration of the October 14 order. This court construed his Notice of Appeal to include a request for a certificate of appealability, which we granted on November 7, 2016.


         The parties have exchanged words over the question whether a certificate of appealability was necessary for this appeal, but we see no need to delve into that question. These proceedings are more like post-judgment compliance proceedings than a direct appeal-neither the state nor Barnett is challenging the substance of the district court's June 1 order issuing the conditional writ. The statute requiring a certificate of appealability, 28 U.S.C. § 2253, requires one in an appeal "from the final order in a proceeding under section 2255." 28 U.S.C. § 2253(c)(1)(B). That is a poor description of this appeal, and so we think it more likely that the requirement for a certificate of appealability does not apply here. But even if it did, this court took the precaution of issuing such a certificate, and our certificate was broad enough to encompass the issues Barnett is presenting to us. Specifically, it orders the parties to "address whether the district court had authority to grant an extension of time after the time to comply [with the conditional writ] had expired." That procedural inquiry is antecedent to the question whether Barnett had a constitutional right to immediate release as of September 30, 2015, under the June 1 writ. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).

         The next question we must address is what sort of animal the state's motion of September 20, 2015, was: A motion under Federal Rule of Civil Procedure 60(b), to alter or amend the judgment? A motion pursuant to post-judgment proceedings, and if so, governed by what law? What we do know is that the state's motion came long after the 28 days permitted by Federal Rule of Civil Procedure 59(d) for relief from the June 1 judgment. It thus seems to us that the best characterization of the state's motion is as a request for modification of the June 1 order to extend the time to decide how to respond from September 29 until October 29. Such a motion can be filed under Rule 60(b)(1). This appears to reflect the district court's thinking: The court accepted the state's argument that the June 1 order left unclear the question who was to pursue the possible new appeal in the Indiana courts. This reasoning calls ...

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