Alan O. Moore, Sr. v. Mote, 368 F. 3d 754 (7th Cir. No. 03-3213, 5/17/04) Issue/Holding: Dismissal with leave to refile following exhaustion of state court remedies doesn’t support a notice of appeal: Generally, this court has jurisdiction only to review final judgments, 28 U.S.C. § 1291. The district court’s order dismissing the case without prejudice… Read more
j. Appeals
Clyde Piggie v. Cotton, 344 F.3d 674 (7th Cir. 2003) Issue/Holding: Requirement of certificate of appealability doesn’t apply to habeas challenge to state disciplinary proceeding, citing Walker v. O’Brien, 216 F.3d 626 (7th Cir. 2002). Rule reaffirmed: Edward D. Anderson v. Benik, No. 05-2323, 12/20/06 But for another circuit’s rejection of this approach, creating a potentially cert-worthy split… Read more
Terrance Bernard Davis v. Borgen, 349 F.3d 1027 ( 7th Cir. 03-2354, 11/20/03) Issue/Holding: A certificate of appealability of dismissal of a habeas petition filed four years after the deadline is vacated: To recap the statutory requirements: (1) A certificate of appealability may be issued only if the prisoner has at least one substantial constitutional question for appeal… Read more
Darrell D. Cage v. McCaughtry, 305 F.3d 625 (7th Cir. 2002) For Cage: Calvin R. Malone Issue/Holding: “When we make a mistake and issue a certificate of appealability that specifies an improper ground, counsel for both sides, rather than indulging a fiction of judicial infallibility, should inform us before briefing begins and ask us to amend… Read more
Bernard L. Beyer v. Litscher, 306 F.3d 504 (7th Cir. 2002) Issue/Holding: Certificate of Appealability required by 28 U.S.C. § 2253(c)(3) must specifically identify a substantial constitutional issue. Declaration of purely statutory issue isn’t enough, and it is incumbent on counsel to bring this defect to the appellate court’s attention. Nonetheless, this appellant is allowed to proceed, though future litigants are cautioned… Read more
