John Lavin v. Dave Rednour

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3318
JOHN LAVIN,
Petitioner-Appellant,
v.
DAVE REDNOUR,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 5175—Joan B. Gottschall, Judge.
SUBMITTED JANUARY 18, 2011—DECIDED APRIL 26, 2011
Before FLAUM, KANNE, and SYKES, Circuit Judges.
FLAUM, Circuit Judge. John 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 petition for a writ of habeas
corpus, 28 U.S.C. § 2254, but certified three of his many
claims for appeal: whether trial counsel rendered con-
stitutionally adequate representation, whether Lavin’s
sentence violates Apprendi v. New Jersey, 530 U.S. 466

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2 No. 10-3318
(2000), and whether the state produced sufficient evidence
of Lavin’s intent to commit attempted murder. We ap-
pointed counsel to represent Lavin on appeal, and counsel
has filed a motion seeking guidance on the scope of his
responsibilities to Lavin and to the court. Specifically,
Lavin has asked counsel to brief claims that were not
included in the certificate of appealability and that
counsel believes do not satisfy the standard for certif-
ication. See 28 U.S.C. § 2253(c). And, although counsel
does not explicitly say so, we assume that he believes
one or more of the certified claims is frivolous. Because
counsel’s quandary is not unusual, we publish our re-
sponse.
Section 2253(c) requires prisoners pursuing a col-
lateral attack on their criminal conviction—whether
under § 2254 or § 2255—to obtain a certificate of
appealability before proceeding on appeal. To receive
certification under § 2253(c), the prisoner must show that
reasonable jurists would find the district court’s assess-
ment of the constitutional claim and any anteced-
ent procedural rulings debatable or wrong. Slack v.
McDaniels, 529 U.S. 473, 484-85 (2000); Davis v. Borgen,
349 F.3d 1027, 1029 (7th Cir. 2003). When a prisoner’s
case is subject to § 2253(c), non-certified claims are not
properly before this court. Ramunno v. United States,
264 F.3d 723, 725 (7th Cir. 2001); Schaff v. Snyder, 190
F.3d 513, 528 (7th Cir. 1999).
Counsel has no obligation to argue claims that are not
certified for appeal. At least one court, if not two (as
when this court has issued the certificate or has been

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No. 10-3318 3
asked to expand a certificate issued by a district court),
has reviewed the record and decided that the non-
certified claims do not satisfy the requirements in
§ 2253(c). If after an independent review of the record
counsel agrees that the non-certified claims are not de-
batable, he or she can safely set aside the non-certified
claims notwithstanding the petitioner-appellant’s desire
to pursue those claims on appeal.
On the other hand, if appointed counsel concludes that
one or more of the non-certified claims is debatable,
the appropriate action is to ask this court to expand
the certificate to include the additional claims. When
a prisoner on collateral review files a pro se brief con-
taining non-certified claims, we will construe the
brief as an implicit request for certification. See, e.g.,
Schaff, 190 F.3d at 528. But we do not hold prisoners
proceeding pro se to the same standards of conduct we
expect from attorneys: Counsel should not simply brief
the additional claims, but should first request permission
to do so.
Likewise, if counsel believes the certificate contains a
claim or claims that do not satisfy the § 2253(c) standard,
he or she should inform the court via motion before
the start of briefing. Counsel for a prisoner on collateral
review has the same responsibility to preserve judicial
resources as counsel representing any other party. Beyer
v. Litscher, 306 F.3d 504, 506 (7th Cir. 2002) (“At this
point either side could—and both should—have brought
the [defect in the certificate] to our attention.”); Cage v.
McCaughtry, 305 F.3d 625, 627 (7th Cir. 2002) (“When

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4 No. 10-3318
we make a mistake and issue a certificate of appeal-
ability 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 the certificate.”). And attorneys have
a duty not to present frivolous arguments. See FED. R.
APP. P. 38. While counsel must make “every effort to
identify an issue that does satisfy § 2253(c),” Ramunno,
264 F.3d at 726, and should ask the court to vacate
certified claims “only when issuance of the certificate
was an obvious blunder,” Davis, 349 F.3d at 1028, an
attorney is never required to argue a frivolous claim
on appeal simply because a client makes such a request.
See United States v. Tabb, 125 F.3d 583, 585-86 (7th Cir. 1997).
Finally, we address counsel’s suggestion that we
adopt an Anders-style procedure when a prisoner
disagrees with his or her representative about the ar-
guments to be brought before this court. See Anders v.
California, 386 U.S. 738 (1967). In Anders the Supreme
Court addressed the tension between a criminal defen-
dant’s right to the effective advocacy of counsel on
direct appeal and counsel’s ethical obligation to refrain
from advancing frivolous arguments. The Court an-
nounced the following procedure when counsel experi-
enced the quandary of either violating professional
codes of conduct or arguing against his client’s interest:
If counsel finds [a defendant-appellant’s] case to be
wholly frivolous, after a conscientious examina-
tion of it, he should so advise the court and request
permission to withdraw. That request must, however,

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No. 10-3318 5
be accompanied by a brief referring to anything in
the record that might arguably support the appeal.
A copy of counsel’s brief should be furnished the
indigent and time allowed him to raise any points
that he chooses.
Id. at 744. See also Tabb, 125 F.3d 583.
However, prisoners do not have the right to counsel
on collateral review. See Pennsylvania v. Finley, 481 U.S.
551 (1987). And, thus, any tension between a prisoner’s
constitutional right to counsel and counsel’s ethical ob-
ligations on collateral review simply does not come
into play.
Moreover, imposing an Anders-style procedure on col-
lateral review would be unworkable. Unlike criminal
appeals resolved under Anders, a respondent-appellee
on collateral review is involved in the appeal. Were we
to impose an Anders obligation on collateral review, we
would have three separate parties-in-interest advancing
a case in circumstances where counsel and a judge
have identified the legally debatable claims. See United
States v. Wagner, 103 F.3d 551, 552 (7th Cir. 1996) (rejecting
a procedure that would unnecessarily complicate crim-
inal appeals). The purpose of § 2253(c) is to stream-
line the appeals process thereby reserving resources for
debatable cases, it is not to create additional admin-
istrative burdens. Davis, 349 F.3d at 1028; Buie
v. McAdory, 322 F.3d 980, 981 (7th Cir. 2003). We reject
counsel’s proposal because any additional procedural
burden is not constitutionally mandated and would

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6 No. 10-3318
We may, of course, solicit a prisoner’s views, especially in 1
circumstances under which granting an attorney’s motion to
vacate a certified claim would result in the dismissal of the
entire appeal. But we will not recognize an absolute right to
respond on the part of a prisoner whose attorney believes
that a certified claim is frivolous.
result in an inefficient allocation of judicial and legal
resources.1
Although prisoners do not have a right to counsel on
collateral review, this court regularly recruits counsel to
represent prisoners whose appeals have been certified
because the cases are demonstrably colorable and the
law is complex. See United States v. Eskridge, 445 F.3d 930,
932 (7th Cir. 2006) (“[T]he issues presented in [collateral]
proceedings are often quite beyond the ability of the
average prisoner to address effectively.”). Additionally,
decisions to grant or deny certification, especially when
made in this court, are often made summarily on a less-
than-complete record. Beyer, 306 F.3d at 506; Cage, 305
F.3d at 627 (“Appellate judges issue these certificates
after only brief study of the case; the lawyers have
spent much more time on the dispute and thus are well
positioned to call errors to our attention.”). Thus, we
recruit counsel not only to advocate effectively on behalf
of the appellant, but to aid the court. Beyer, 306 F.3d at
506 (“Courts are entitled to that much assistance from
members of the bar, so that remediable problems may
be fixed before they cause unhappy consequences.”).
See also United States v. Palmer, 600 F.3d 897, 898 (7th Cir.
2010) (“[A] lawyer submitting an Anders motion is an

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No. 10-3318 7
officer of the court and is essentially offering an expert
opinion.”) (quotation and citation omitted). We expect
counsel’s honest and professionally responsible assess-
ment of the case.
Finally, we note that appellants on collateral review
may dismiss counsel and represent themselves if they
disagree strongly enough with counsel’s professional
opinion. See United States v. Shaaban, 523 F.3d 680, 681 (7th
Cir. 2008); see also United States v. Oreye, 263 F.3d 669, 673
(7th Cir. 2001) (“[W]e don’t allow hybrid representation
on appeal . . . because hybrid representation confuses
and extends matters.”). We do not, however, recommend
this course. See, e.g., Betts v. Litscher, 241 F.3d 594, 596
(7th Cir. 2001) (noting a principal reason to appoint
appellate counsel is “that they will not make the kind
of procedural errors that unrepresented defendants
tend to commit”).
Within thirty days of the issuance of this opinion,
counsel for Lavin shall file a motion consistent with this
opinion or an opening brief that complies with Federal
Rule of Appellate Procedure 28 and Circuit Rule 28.
4-26-11

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