Terry V. Anderson v. Jon E. Litscher, Secretary

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-2627
Terry V. Anderson,
Petitioner-Appellant,
v.
Jon E. Litscher, Secretary,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 97-C-1230--Aaron E. Goodstein, Magistrate Judge.
Argued January 17, 2002--Decided February 25, 2002
Before Flaum, Chief Judge, Bauer and
Easterbrook, Circuit Judges.
Bauer, Circuit Judge. The petitioner-
appellant filed a Petition for Writ of
Habeas Corpus, seeking review of his
state court conviction on the basis of
claimed constitutional violations. The
petition was subsequently dismissed as
time barred under 28 U.S.C. sec.
2244(d)(1)(A). We find that the petition
for writ was timely filed; however, we
nonetheless AFFIRM its dismissal because
the appellant has waived the
constitutional claims on which his
certificate of appealability was
predicated and which would entitle him to
habeas relief.
Background
Following a trial by jury, the appellant
was found guilty of securities fraud,
theft by bailee and forgery. After
exhausting available state remedies, the
appellant filed a Petition for Writ of
Habeas Corpus under 28 U.S.C. sec. 2254.
By consent of the parties, the matter was
transferred to and adjudicated by a
magistrate judge, who thereafter
dismissed the appellant’s petition as
time barred under 28 U.S.C. sec.
2244(d)(1)(A). Although the magistrate
judge did not reach the merits of the
appellant’s constitutional claims, he did

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find that the appellant made "a
substantial showing of the denial of a
constitutional right" such that the issu
ance of a certificate of appealability
("COA") was proper under 28 U.S.C. sec.
2253(c)(2). Additionally, the magistrate
judge appended the question of timeliness
under section 2244(d)(1)(A) as an
antecedent issue to the COA.
Discussion
On appeal of a district court’s decision
to grant or to deny a petition for writ
of habeas corpus, we review all questions
of law de novo. Small v. Endicott, 998
F.2d 411, 414 (7th Cir. 1993). Further,
we may affirm the district court’s ruling
on any basis finding support in the
record, even where the district court
relied on the wrong grounds or reasoning
in dismissing the petition. Id.
"A certificate of appealability may
issue . . . only if the applicant has
made a substantial showing of the denial
of a constitutional right . . . [and the
certificate] shall indicate which
specific issue or issues satisfy that
showing." 28 U.S.C. sec. 2253(c). Where
the petition was dismissed on procedural
grounds, the procedural issue may be
appended to the COA as an antecedent
issue provided it, too, is substantial.
Owens v. Boyd, 235 F.3d 356, 358 (7th
Cir. 2000) ("If the prisoner’s underlying
constitutional objection to his
conviction is itself substantial, then
the district court may issue a
certificate on that issue (even though
the petition was denied without reaching
it) and append the statutory ground as an
antecedent issue to be resolved on appeal
if it, too, is substantial." (citing
Slack v. McDaniel, 529 U.S. 473, 484-85
(2000))) (emphasis in original). The COA
in this case identifies two
constitutional claims that support its
issuance as well as an antecedent
statutory issue regarding the application
of the one-year limitations period set
forth in 28 U.S.C. sec. 2244(d)(1)(A) and
is therefore proper. So we proceed to the
merits as the parties have presented
them.
Where, as here, both constitutional and
procedural issues are certified for
appeal, the Supreme Court has stated:
"Resolution of procedural issues first is

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allowed and encouraged by the rule that
this Court will not pass upon a
constitutional question if there is also
present some other ground upon which the
case may be disposed of." Slack, 529 U.S.
at 475 (emphasis added). Because the
antecedent statutory question of
timeliness under section 2244(d)(1)(A) is
potentially dispositive in this case
(i.e., dismissal of the appellant’s
habeas case is required if we find that
his petition was untimely filed under
section 2244(d)(1)(A)), we address that
issue first.
In determining that the appellant’s
habeas petition was untimely under
section 2244(d)(1)(A), the magistrate
judge relied on the case of Gutierrez v.
Schomig, 233 F.3d 490. Such reliance was
misplaced, however, because Gutierrez
involved measuring the statute of
limitations applicable under section
2244(d)(2), not section 2244(d)(1)(A).
While section 2244(d)(1)(A) provides that
the one year statute of limitations
applicable to state prisoners seeking
habeas relief begins to run from the
latest of "the conclusion of direct
review or the expiration of the time for
seeking such review," section 2244(d)(2)
tolls that limitations period during the
time that "a properly filed application
for State post-conviction or other
collateral review with respect to
thepertinent judgment or claim is
pending." 28 U.S.C. sec.sec. 2244(d)
(1)(A), (d)(2); see also Gutierrez, 233
F.3d at 491-92 (contrasting the language
of section 2244(d)(1)(A) and section
2244(d)(2) respectively). The specific
question addressed in Gutierrez was what
constituted "a properly filed application
. . . [that] is pending" for purposes of
tolling the applicable statute of
limitations under section 2244(d)(2). 233
F.3d at 492 (brackets in original). In
contrast, our inquiry here involves the
question of whether the ninety day period
after a direct appeal during which a
petition for certiorari may be filed by a
state prisoner falls within the meaning
of section 2244(d)(1)(A) for purposes of
determining when the statute of
limitations begins to run. We believe
that it does.
As discussed, the text of 2244(d)(1)(A)
states that the one-year limitations
period for habeas actions begins to run

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from the latest of "the date on which the
judgment became final by the conclusion
of direct review or the expiration of the
time for seeking such review." 28 U.S.C.
sec. 2244(d)(1)(A) (emphasis added).
Without question, review of a state
criminal conviction by the United States
Supreme Court is considered "direct
review" of that conviction. See Bell v.
Maryland, 378 U.S. 226, 232 (1964).
Because the plain terms of section 2244
include the period for seeking direct
review, regardless of whether or not a
petitioner chooses to avail himself or
herself of that opportunity, we believe
that the ninety day period during which a
petition for certiorari may be filed by a
state prisoner falls within the meaning
of section 2244(d)(1)(A) for purposes of
calculating when the statute of
limitations begins to run. Cf. Teague v.
Lane, 489 U.S. 288, 295 (1989) (noting
that direct review ends "where the
judgment of conviction was rendered, the
availability of appeal exhausted, and the
time for petition for certiorari had
elapsed" when determining the scope of
direct review for the purpose of
assessing the retroactivity of a Supreme
Court decision) (citations omitted);
Gendron v. United States, 154 F.3d 672,
674 (7th Cir. 1998) (finding the language
of section 2244(d)(1)(A) "explicitly
included the time for seeking leave to
appeal with a state supreme court even if
the petitioner elected not to do so").
Accordingly, the statute of limitations
imposed by section 2244(d)(1)(A) begins
to run (i) when all direct criminal
appeals in the state system are
concluded, followed by either completion
or denial of certiorari proceedings
before the United States Supreme Court;
or (ii) when, if certiorari was not
sought, all direct criminal appeals in
the state system are concluded, followed
by the expiration of the time allotted
for filing a petition for writ.
Here, the appellant had ninety days
following the entry of judgment by the
Supreme Court of Wisconsin, or until
November 25, 1996, to file a petition for
certiorari in the United States Supreme
Court. Thus, the statute of limitations
on the appellant’s habeas petition began
to run on November 26, 1996. The
appellant’s petition for writ was filed
on November 25, 1997, within the
applicable limitations period, and was

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therefore timely.
Also certified for appeal were two
constitutional issues: (1) whether the
jury instructions on what constitutes an
"investment contract" were so flawed that
they violated due process; and (2)
whether the trial court improperly
permitted the prosecution to define an
element of the securities fraud offense
through expert testimony. Despite being
properly specified in the COA, neither of
these issues was briefed by the
appellant. Instead, the appellant chose
to ignore the constitutional grounds
necessary for the COA’s issuance in the
first place and briefed only the
antecedent statutory question of
timeliness. Rule 28 of the Federal Rules
of Appellate Procedure requires that an
appellant’s initial brief set forth all
of the issues and contentions on which
the appeal is based. Fed. R. App. P.
28(a)(9)(A) (requiring that the
appellant’s brief contain the
"appellant’s contentions and the reasons
for them, with citations to the
authorities and parts of the record on
which the appellant relies"). The
appellant’s failure to brief all of the
issues and contentions set forth in the
COA and on which this appeal is based
(i.e., the antecedent statutory question
and the constitutional claims) results in
a waiver of those arguments omitted from
his opening brief. See, e.g., United
States v. Feinberg, 89 F.3d 333, 340 (7th
Cir. 1996) ("Any issues or arguments of
which the appellate may wish to avail
himself are forfeited unless proffered in
the appellate brief."). Because the
appellant has waived his constitutional
claims by way of omission, this Court is
without grounds to grant habeas relief.
Thus, although the petition for writ was
timely filed, its dismissal is affirmed
because the appellant has forfeited the
constitutional claims on which his
certificate of appealability was
predicated and which would entitle him to
habeas relief.
Conclusion
For the foregoing reasons, the dismissal
of the appellant’s Petition for Writ of
Habeas Corpus is AFFIRMED.

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