7th Circuit: District court properly granted extra time to move for appeal

June 21, 2017

A federal judge properly allowed the state to have an extended period of time to move for direct appeal, the 7th Circuit Court of Appeals determined Tuesday, finding a conditional writ of habeas corpus in the case provided unclear instructions on how the state was supposed to proceed.

Anthony Barnett was charged with felony battery in December 2002, and the trial court set the omnibus date for Jan. 7, 2003, that set the last day for substantive amendments to his charges as Dec. 8, 2002. However, in February 2003, the prosecutor added burglary, intimidation and habitual offender charges, and Barnett’s trial counsel failed to notice the procedural misstep.

Barnett’s appellate counsel also overlooked the procedural issue on appeal, so Barnett filed a petition for a writ of habeas corpus. Barnett’s petition was denied, but the 7th Circuit Court of Appeals had just released its decision in Shaw v. Wilson, 721 F.3d 908, 911 (7th Cir. 2013), which issued habeas relief to a prisoner under the same theory Barnett was pursuing.

By the time Shaw was decided, Barnett’s case had reached the 7th Circuit Court of Appeals, which remanded his case to the U.S. District Court for the Northern District of Indiana. The district court then granted habeas relief in June 2015, with an order that held, “(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.”

The 120-day period passed without state action, so Barnett filed a request for immediate release. The state responded that it had misunderstood the order “as requiring the state courts to grant (Barnett) a new appeal upon his request.” The state then said it had moved for direct appeal and asked the district court to extend the release date by 30 days to give the Indiana Court of Appeals time to decide whether to grant the new appeal.

The district court granted the state’s request on Oct. 14, 2015, and the next day Barnett moved under Federal Rule of Civil Procedure 59(a) to alter or amend the Oct. 14 order and grant him immediate release. By that time, the Indiana Court of Appeals had granted leave for Barnett to file a new appeal, so the district court denied his motion.

Barnett then appealed to the 7th Circuit, challenging the granting of extra time to comply with the conditional writ. But the 7th Circuit affirmed the district court’s decision Tuesday, with Chief Judge Diane Wood writing it appeared the court granted the state’s motion under Rule 60(b)(1), which references “mistake, inadvertence, surprise, or excusable neglect.”

Calling the situation a “close case,” Wood said the state could have asked the district court to clarify the June 2015 order, and “its failure to do so does not seem to reflect ‘mistake, inadvertence, surprise, or excusable neglect.’” However, the chief judge also said there were “hidden problems” in the order, including the fact that the Indiana State Prison superintendent, the attorney general and his subordinates do not have the power to grant a new appeal.

However, the underlying constitutional violation Barnett raised was ineffective assistance of counsel in violation of the Sixth Amendment, and the district court “correctly recognized that one remedy for that violation was a new appeal,” Wood said.

“That is the remedy Indiana is now prepared to give to Barnett, and although he obviously would have liked more, the state was entitled to the more precisely tailored option,” the chief judge said.

The case is Anthony Barnett v. Ron Neal, 15-3559.