Lavin v. Rednour
641 F.3d 830
7th Cir.2011Background
- Lavin is serving a 40-year sentence for attempted first-degree murder, aggravated battery, and aggravated battery of a senior citizen.
- The district court denied Lavin's habeas petition under 28 U.S.C. § 2254 but certified three claims for appeal.
- The court appointed counsel to represent Lavin on appeal and counsel sought guidance on scope of responsibilities and on whether to brief non-certified claims.
- Section 2253(c) requires a certificate of appealability to pursue collateral review and limits review to debatable or wrong district court rulings on certified claims.
- Counsel cannot be required to argue frivolous non-certified claims, and the court rejected an Anders-style procedure for collateral review but allows appointment of counsel to assist colorable issues.
- The court instructed Lavin’s counsel to file a motion or opening brief within thirty days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of certification for appeal | Lavin argues non-certified claims may be pursued if debatable. | Respondent argues only certified claims are before the court. | Only certified claims may be litigated; non-certified claims are not before the court. |
| Counsel's duty to argue non-certified claims | Counsel should brief all potentially debatable non-certified claims. | Counsel may decline to argue non-certified, frivolous claims. | Counsel need not argue non-certified frivolous claims; may seek certificate expansion only for debatable issues. |
| Expansion of the certificate of appealability | If a non-certified claim is debatable, seek expansion of the certificate. | Expansion should be limited to debatable issues after independent review. | If non-certified claims are debatable, the court may expand the certificate to include them. |
| Anders-style procedure on collateral review | Adopt Anders-like briefing when counsel faces issues; withdraw if frivolous. | Collateral review lacks a right to counsel; Anders procedure would be impractical. | An Anders-style procedure is rejected for collateral review. |
| Role of appointed counsel and docket management | Counsel should aid the court in identifying colorable issues. | Counsel should avoid frivolous arguments and manage resources efficiently. | Counsel should identify debatable issues and assist the court; no obligation to argue frivolous claims. |
Key Cases Cited
- Slack v. McDaniel, 529 U.S. 473 (2000) (certification standards for § 2253(c))
- Davis v. Borgen, 349 F.3d 1027 (7th Cir.2003) (standard for granting certification)
- Ramunno v. United States, 264 F.3d 723 (7th Cir.2001) (non-certified claims basics)
- Schaff v. Snyder, 190 F.3d 513 (7th Cir.1999) (proceeding on non-certified claims)
- Beyer v. Litscher, 306 F.3d 504 (7th Cir.2002) (counsel's duties on collateral review)
- Cage v. McCaughtry, 305 F.3d 625 (7th Cir.2002) (binding cooperation to preserve resources)
- Tabb v. United States, 125 F.3d 583 (7th Cir.1997) (counsel's responsibilities and scope)
- United States v. Eskridge, 445 F.3d 930 (7th Cir.2006) (counsel recruitment on colorable issues)
- United States v. Wagner, 103 F.3d 551 (7th Cir.1996) (procedural efficiency in collateral review)