*1 disregard only the entire rec- after pro- administrative accrues the administrative ended, ord would frustrate the ceeding Coal Act’s adminis- a penalty has has been as- scheme. interpre- sessed, trative Under Old Ben’s pay and the violator has to failed the proceeding tation administrative penalty. the The Coal Act specifical- states be superfluous. We do not ly Secretary believe that shall the file a result, Congress intended this lan- assessing enforcement order the civil guage the Coal Act does not it. penalty person against whom the penalty assessed fails within pay was to district The court should review the ad- prescribed time order. 30 U.S.C. enforce, ministrative proceeding modify, to 819(a)(4). Obviously an administrative § deny the order. The is akin action to a must agency order exist before the Secre- reason, collection proceeding. For this tary can file district court to en- action statute at limitations 28 U.S.C. § Therefore, force it. if 28 § U.S.C. application. preju- has no not Old Ben is applies district court diced our holding. purposes The behind period begins limitations to run when the put statute limitations are to the al- administrative order becomes final. leged violator on prevent notice and to loss of evidence. The pro- administrative judge’s The administrative law be- order ceeding fulfilled purposes. these Ben July Secretary Old came on final 1975. The violations, on put notice of alleged July of Labor sued to enforce the order and a was held at both which sides suit was years 1980. The within five introduced evidence. Old Ben cannot be the date claim accrued. argue
heard liability its financial foregoing For reasons the order ceases because it pay sat back and failed to court is reversed. a properly penalty. assessed
II
Even if agree we application, has
§ the district court
was still error. A statute of limitations begin to right
cannot run until there is
bring action. Front Crown Coat Co. UNITED STATES of America ex rel. JONES, Petitioner, held the Court that a Alonzo Howard district court against action a contractor accrued, the United States purposes FRANZEN, Gayle M. Illinois Penal Di- the statute of limitations at 28 U.S.C. Scott, rector William J. 2401,4 when § agency administrative Attorney General, Respondents. ruled “finally claim.” 386 at [the] at 1187. It No. observed that a 80-1097. court cannot review a “which decision has Appeals, United States Court of been yet made.” 386 at Seventh Circuit. S.Ct. at 1184. See also United States Withrow, Argued 804-05 Jan. 1982. 1979). Parallel reasoning applies here. April Decided statute limitations at 28 U.S.C. does not begin § run until “the date
when the claim first In the accrued.” con
text of Coal Act the district court claim pertinent part: plaint years right 4. 28 U.S.C. 2401 reads in is filed within six after the first Every of action accrues. against civil action commenced United States shall be barred unless com- *2 Levenstam, Chicago, 111.,
Barry peti- for tioner. Bindi, Gen., Atty.
David Asst. Chicago, 111., respondents. for CUMMINGS, Before Judge, Chief MAR- POSNER, KEY,* Judge, Chief and Cir cuit Judge.
MARKEY, Judge. Chief Ordering response no from the state and reviewing only petition- the submissions of er, the summarily district court dismissed a corpus. for writ of habeas In of 2254(d)(8),1 view we and reverse remand.2 * Howard T. States sitting by designation. jurisdiction able and written plicant for the al court courts issue, § 2254. State (d) agent corpus by judgment after Court Customs [******] [******] made finding, by any proceeding thereof were Markey, a adequate to be by a of a State writ a application person written correct, custody; a State a factual the merits of on written parties, the State or an officer opinion, instituted in a Feder- Judge custody court, for a writ of habe- remedies in State Patent indicia, evidenced which of a determina- or other reli- pursuant Appeals, the United competent shall be ap- 2. Jones filed this Time has oner newly was affirmed five from its cluded if not the evidence to nation, concludes that after, tion nation of such factual State nent (8) years petitions generating fairly discovered evidence be court ... unless that [******] merits, wrought such a determination of the supported produced the Federal court filed proceeding eight part the case can be classed current such within months after his conviction Great Writ not based on changes. Entirely apart by factual determination is part the record as a whole issue suggestions in which the record: such factual determi- provided specified of October the record of the on statutorily pre- sufficiency a considera- the determi- made, perti- time. Illinois. herein- among pris- were each
Background
accountable
crimes commit
pursuance
plan,
ted in
affirmed the
As
described
Court of
convictions,
(1)
holding:
Defendants did not
People
56 Ill.2d
287-
carry
proof
their
per
burden
use of
prison
N.E.2d
riot
offered,
jured testimony,
proof
Penitentiary
occurred at Menard
on No
*3
believed,
sup
if
would nonetheless fail to
p.
vember
after 4:00 m.
Just
port
pertained
a
to
reversal because
day, during
(Bas
four
supper,
inmates
and did not
stabbings
actual
therefore
sett,
Griffin, Stamps,
Brown a/k/a
and
accountability theory; (2)
affect the state’s
Jones)
riot,
precipitated the
stabbed to
made,
sup
leniency,
Offers of
failed to
guards,
death three
wounded seven
eight
or
port
perjury
a claim
in view of
People
guards,
hostages
other
seized and held
in Harris,
(1973); (3)
55 Ill.2d
On December focuses on the respond reviewing feating 2254(d)(8), the state to supra, factor listed in § court, asserting district a one- note court find- paragraph order, ings fairly supported by minute denied leave to file pauperis. forma filed Petition court trial record. Cause, Certification Probable a No- Respect for the state courts and the fun- tice of Appeal, Appeal a Petition to recogni- damentals of federalism Pauperis. Forma On January capable, courts are that state care- court, in a one-paragraph second ful, compassionate as are federal courts order, pauper minute found Jones a compliance enforcing with probable refused a certificate cause. States Constitution. Federal district and explanation, Without the district court de- appellate appellate courts do not exercise having scribed Jones’ claims as “no merit *4 jurisdiction state courts.5 The federal over whatsoever”, interpretable a statement as a however, petitioner, asserting is finding petition that Jones’ habeas was deprivation of liberty of violation 1915(d).3 “frivolous”. 28 See U.S.C. The § impact Constitution. The of assertion district court made no ruling Jones’ mo- upon concept constitutionally-guar- of tion for appointment of counsel. impelled anteed freedoms has courts 1980, court, 7, On July noting this “a and the a review of Congress substantial appeal”, issue review is- proceedings state court to insure sufficient probable cause, sued a of grant- certificate against even those instanc- expectably rare ed appeal pauperis, leave to in forma prove es in might which the assertion true. appointed counsel. 28 U.S.C. 2254. § must Hence the court review
ISSUE
the state court trial record to determine
whether,
The issue
of
view 28 U.S.C.
whether
federal habeas
2254(d)(8),the
§
district court erred in de-
corpus relief had received the constitution
nying
without requiring the
ally
process
due
a full
afforded
respond4
state to
and without reviewing
findings
and fair
resulting
sup
necessary portions of the
court
record.
record,
Sain,
ported by the
v.
372
Townsend
758,
U.S.
83
9
OPINION
(1963), may
770
dismiss
It is undisputed
findings
of state
determining
the state court
courts are
correct on habeas cor-
findings
presumption
are entitled
of
pus
2254(d);
review. 28 U.S.C.
Sumner
§
correctness.
ex rel. Worlow
United States
Mata,
v.
547-50,
101
Pate,
(7th
1971).
v.
437 F.2d
Cir.
(1981);
Allen,
v.
Brown
sumption (as here) “in the blind” when the perforce argues Amicus that Jones’ due alleged, facts unchallenged, would reflect process rights preserved by post were a denial of rights. constitutional trial hearing supreme and state court re
The district court need not review the view of his allegations. argument, That (here 12,000 however, entire state trial record pages), in this case runs afoul of section but must review portion 2254(d)(8) in which the requirement that the ha disputed made, factual determinations were beas court determine whether the conclu 2254(d)(8), U.S.C. and “such § sions of the “fairly sup state courts are transcripts answering party ported by argument the record”. The fails (Rule deems relevant”. 28 5). also for want of attention to this court’s sum, the district court must review the statement in United States ex rel. Burnett “pertinent parts” of the state court trial denied, 619 F.2d cert. Jenkins, record. Montes 581 F.2d 1978). appropriate only that “Dismissal is after an any examination of the record for Recognizing the necessity for review of set of facts to a claim knowing the state court argues Amicus use of perjury [Citation omitted].” the district court’s “Sup- review of Jones’ *5 portive Documentation” constituted the re- summary of facts in the Su quired review of “pertinent parts” Bassett, preme Court of opinion the state trial record. Our review of Jones’ supra, only present item in the submission, under the circumstances on this gives that information on the crimes of appeal, persuades us that it not. did convicted, which Jones was does indicate
One of
glaring
sup
the state trial court record
among
deficiencies
present
port findings
circumstances is
participated
the election of the
Jones
district court
response
not to order a
escape plan and was thus liable for crimes
from
result,
the named respondents.
plan.
As a
committed in
of that
In Da
district court
Franzen,
(7th
and this court
1982),
are denied an
vis v.
Bordenkireher,
remand,
557 F.2d
99
Cir. material on
perjured
the use of
1977).
cannot, therefore,
We
as the habeas
testimony thus established would alone en-
corpus
not,
look
could
Giglio
title Jones to issuance of the writ.
the Supreme
supra,
Court in
United
405
31
U.S.
determining
whether
factual determi-
Illinois,
(1972);
Napue
L.Ed.2d
nations of
“fairly sup-
the trial court are
U.S.
ported
record.”
28 U.S.C.
(1959).
2254(d)(8).
respecting
Jones’ allegation
per-
Because
argues
Amicus
that Jones’ “Supportive
jured testimony
must be
true and
Documentation” is insufficient
to establish
appeal,
material on this
and remand thus
allegations,
truth of his
briefs
necessitated,
necessary
it is not
to discuss in
before
argue extensively
us
the question of
detail
allegations,
the remainder of Jones’
whether
gives
that “Documentation"
to his
subject
all of which are
review
allegations
ring of
truth.7
unnec
It is
pertinent portions
district court in
essary, however,
to answer that question
of the state trial record on remand.
definitively
appeal.
on this
This court has
stated unequivocally
prison
that “where a
The rule of Curtis and Wilson is
er’s
is dismissed without
particularly applicable
where
requiring
answer,
the respondent to
the al
response,
court not
declines to order a
legations must be deemed true for the
but,
here,
pro
substitutes a review of a
se
present purposes.”
ex
rel.
States
petitioner’s
submissions
re
Curtis v.
521 F.2d
cert.
view of the state court record. This court
denied,
has said that “liberal construction is to be
Phend,
Wilson v.
se,
accorded
pro
including
material drawn
F.2d
later appeal aff’d
petitions
for habeas
and other forms
nom.,
Lash,
sub
Wilson
cert.
post-conviction
relief
omit
[Citations
denied,
Phend,
Wilson v.
411 U.S.
opportunity
present
where he had an
California,
Harrington v.
support
allegations
evidence in
of his
(1969)),9
it. The
against
took
state trial court found
question
nor the
allegations
of whether the
findings
him on the facts and its
were af-
the jury saw
visitors
weekends and
supreme
firmed
the state
court with a
interrogated
was not
concerning improper
opinion.
throughout
full
Jones had counsel
influence,
presumption
raised a
of actual
proceeding.
very
rec-
prejudice under the standards of Goins v.
excerpts
ord
that he submitted to the court
McKeen,
1979),
Conclusion
slate,
writing
if I were
on a clean
Accordingly,
summary
custody
the
dismissal
Jones is not
violation of the
corpus
the
for habeas
is reversed Constitution or laws of the United States.
and the
2241(c)(3).
cause is remanded to the district
This is so even
See U.S.C. §
below,
court with
appoint
directions to
counsel for
though
judge
the district
had he sent
petitioner,
response
weighed
to order a
from the
the state-court
record and
by
(1979);
Spinks,
relevant to the issues raised
299
64,
United States v.
470 F.2d
charged against
denied,
456,
the
indigent prisoner
should not be
an
cert.
409 U.S.
93 S.Ct.
request
denied a
for assist-
(1972);
States ex rel. Wil
ance of counsel.
denied,
Warden,
(1979),
son v.
justice system, imposes
unduly
the time
reading
criminal-procedure provisions
our busy
judges,
arouses false
Rights expansively
the Bill of
and applying
hopes
prisoners,
probably
does
readings
expansive
states
accuracy
increase
overall
of consti-
Amendment,
through the Fourteenth
tutional determinations.
These concerns
just beginning,
then
and the number and
powerfully
were
marshaled almost 20 years
variety of constitutional claims that state
article,
ago in Professor
Finality
Bator’s
prisoners
be
to raise in
would
able
habeas
Criminal Law and Federal
Corpus
Habeas
corpus proceedings was not
foreseen.
Prisoners,
for State
76 Harv.L.Rev. 441
changed,
Times have
and recent decisions
since,
experience
impressionistic
Supreme
notably
Stone
Pow
Court —
is,
as it largely
has
rather
than
increased
ell,
diminished their force.
(1976);
Wainwright
Sykes, 433 U.S.
Judge
But as
Markey’s
72, 97
state court’s was —if Section also concludes, the questions federal district “on a petitioner vides that a who the part consideration of the record support sufficiency of the evidence of a [the] the pertinent sufficiency to of the shall, [that court’s factual determination evidence to the state court’s factual support able, part produce he is that of the record whole,” as a the state determination] pertinent sufficiency. to a determination of court’s “is not fairly factual determination Though was indigent, evidently able supported record.” by the U.S.C. produce to the record of the state-court 2254(d)(8). Nothing legislative his- § proceedings, he submitted several because tory or of adoption suggests circumstances hundred record to the court pages of the language the not quoted does mean below. But unless we are to believe that Where, therefore, what it says. as in the the state presented contrary no evidence to ease, corpus petitioner the habeas his claims—which is unbelievable in challenges sufficiency the of the evidence the did Court’s —he reject relied on the state court to his pertinent not submit the of the rec- whole claims, constitutional the federal district ord to the The court could district court. court has to examine the relevant portions supplement therefore have asked him to his of the record to determine whether the submission further. See 28 U.S.C. state court’s fairly factual determination is 2254(e). issued an It could have order to § supported. state, show cause see 28 to the As Judge Markey explains, the dis- 2243, which in its would no doubt return trict court below doing disabled itself from copy have with a furnished the court of the this by dismissing the when it did. portions other relevant of the It record. Jones had not submitted court the empowered though certainly not re- entire record relevant to his factual conten- quired to send for whole record —more just portions tions supported but 12,000 told, pages, than are most we course, his claims. if the por- Of submitted probably petitioner’s conten- irrelevant to provided tions of the record had no support do, tions. But what the court could not for those claims the district court would 2254(d), without violating section was sim- have been to empowered deny ply petition, dismiss the since the But they provide further ado. did challenged sufficiency had evi- much, Not very his claims. but reject dence in the state his if there were relevant no other evidence in constitutional claims and court did not the record it be would difficult to under- have enough of the record before it to show why rejected stand the state courts had the evidence was sufficient. claims, district court would to reverse—a result we are So forced have had to conclude that the state-court unsupportable as a matter fundamental factfindings fairly supported were not principle. If defendant has re- a criminal the record and have had to conduct evidentiary hearing ceived a full and fair an evidentiary hearing. There must in fact state court on his federal constitutional evidence, have been other contrary evidence claims, to; is all he should be entitled record; petitioner’s, required, the federal courts should this can be inferred from the discussion of allowed, probably not be to re- should petitioner’s contentions the Illinois weigh or rehear facts. But section 2254(d)(8) section pre- Court. But 2254(d) If this is approach. bars this what vents the corpus judge federal habeas from wants, Congress complain; it is not us deferring factfindings judicial in a here, opinion (if, Congress but I is what has they are cannot believe it challenged) (the appears legis- ever they supported by unless wanted. far as are So unilluminating), and he lative section they sup- history cannot tell whether ported by 2254(d) simply to rath- having clarify, the record without was intended relevant perpetuate, er than before him. to endorse and *9 Townsend criteria review and redeter-
mination of in fed- factfindings state-court proceedings;
eral habeas but preserve
effect of the statute has been to jurisprudence
if in amber the outmoded
Townsend, judicial and to forestall reform. has,
If I am correct the statute inadvertence,
through an ef- come have
fect different from the one was intended have, then it would seem to follow that statute;
Congress should reexamine the
specifically, that it should consider amend- provide it to that federal courts in habe- corpus proceedings may not reexamine based, factfindings case, on a full and fair evidentiary
hearing. COMPANY,
NORTHERN ILLINOIS GAS Corporation,
an Illinois
Plaintiff-Appellant, GASES,
AIRCO INDUSTRIAL A DIVI- AIRCO, INC.,
SION OF a Delaware Cor-
poration, al., Defendants-Appellees. et
No. 81-1743. Appeals, States Court of
Seventh Circuit.
Argued Jan. 1982. April 16,
Decided