Cory Gilmore v. Daniel Bertrand

ΠAfter an examination of the briefs and the record, we have con-
cluded that oral argument is unnecessary. Thus, the appeal is sub-
mitted on the briefs and the record. See Fed. R. App. P. 34(a) (2).
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4344
C ORY G ILMORE ,
Petitioner-Appellant,
v.
D ANIEL B ERTRAND ,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01-C-0115—J.P. Stadtmueller, Chief Judge.
____________
S UBMITTED J ULY 24, 2002Œ—D ECIDED A UGUST 21, 2002
____________
Before B AUER , R IPPLE and M ANION , Circuit Judges.
P ER C URIAM . Cory Gilmore was convicted of armed
robbery and battery in Wisconsin state court and sentenced
to 54 years’ imprisonment. After exhausting his state rem-
edies, Mr. Gilmore filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2254 alleging inter alia that he was
denied his Sixth Amendment right to counsel on direct
appeal when his attorney unilaterally withdrew from the

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2 No. 01-4344
1 In its brief, the State argues that we should vacate the certificate of
appealability (“CA”) issued to Mr. Gilmore and dismiss this appeal
because the CA—which was granted only on the issue of whether he
was entitled to an unconditional writ of habeas corpus due to the
State’s failure to comply with the conditional writ—does not identify
a constitutional issue debatable among jurists and thus does not
satisfy the mandates of 28 U.S.C. § 2253(c)(2) and (3). See Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000). But the State’s request is too
late, see Ramunno v. United States, 264 F.3d 723, 725 (7th Cir. 2001)
(government must bring alleged defect in the CA to this court’s
attention “early in the process”), and we shall proceed to the merits
of Mr. Gilmore’s arguments. See Owens v. Boyd, 235 F.3d 356, 358 (7th
Cir. 2000) (defect in CA is not a jurisdictional flaw).
case. The State agreed that Mr. Gilmore was entitled to
habeas corpus relief, and the district court granted the
petition. The court stayed execution of the writ for 120 days
to allow the State to reinstate Mr. Gilmore’s right to a direct
appeal with counsel. After the State failed to meet the 120-
day deadline, the district court granted its motion for a 45-
day extension of the stay. Mr. Gilmore’s direct appeal
rights were subsequently reinstated within the prescribed
time, and the district court dismissed the petition. Mr.
Gilmore appeals. For the reasons set forth in this opinion,
we affirm the judgment of the district court. 1
DISCUSSION
Mr. Gilmore asserts that the district court erred by grant-
ing the State’s motion for additional time to correct the
violation of his Sixth Amendment rights. He argues that
district courts do not have the power to grant extensions of
time once the terms of a conditional writ have been estab-
lished.
This circuit has not yet addressed the issue presented
here. But habeas corpus is an equitable remedy, Schlup v.

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No. 01-4344 3
Delo, 513 U.S. 298, 319 (1995), and courts have “broad dis-
cretion in conditioning a judgment granting habeas relief.”
Hilton v. Braunskill, 481 U.S. 770, 775 (1987). Indeed, “fed-
eral courts may delay the release of a successful habeas
petitioner in order to provide the State an opportunity to
correct the constitutional violation found by the court.” Id.;
see also Phifer v. Warden, United States Penitentiary, Terre
Haute, Ind., 53 F.3d 859, 864-65 (7th Cir. 1995) (federal
courts have the power to issue conditional writs giving
states the opportunity to cure any constitutional errors).
Logically, the equitable power of the district court in de-
ciding a habeas corpus petition includes the ability to grant
the state additional time beyond the period prescribed in
a conditional writ to cure a constitutional deficiency. See
Edwards v. Cauthron, No. 97-6172, 1997 WL 579182 at *2
(10th Cir. Sept. 18, 1997) (unpublished) (affirming an order
granting an extension of time for the state to comply with
conditional writ because a federal court has the “inherent
authority . . . to manage its docket[],” including the “dis-
cretion to grant or deny continuances or extensions of
time”); Chambers v. Armontrout, 16 F.3d 257, 261 n.2 (8th
Cir. 1994) (district court did not err in granting state addi-
tional time to conduct retrial); Moore v. Zant, 972 F.2d 318,
321 (11th Cir. 1992) (per curiam) (district court had power
to grant state more time to comply with terms of a condi-
tional writ); Frazier v. Roberts, 441 F.2d 1224, 1229 (8th Cir.
1971) (per curiam) (noting that district court could grant
exension of time for retrial).
In support of his position, Mr. Gilmore cites a number
of cases in which prisoners were released from custody
after the state failed to timely comply with a conditional
writ of habeas corpus by failing to act to correct a constitu-
tional violation within the period of time specified by the
court. None of these cases, however, holds that the court

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4 No. 01-4344
must release a prisoner if the state fails to act in a timely
manner; that decision lies within the district court’s dis-
cretion. See Phifer, 53 F.3d at 864 (“[I]f the state fails to meet
the condition specified in the conditional order, the dis-
trict court may order the petitioner’s release.”) (emphasis
added). We therefore hold that the district court had the
power to grant the State’s motion for an extension of time
to comply with the order conditionally granting Mr. Gil-
more habeas corpus relief. Mr. Gilmore does not argue that
the district court abused its discretion to grant the exten-
sion.
Mr. Gilmore also argues that the district court erred by
dismissing his petition. But Mr. Gilmore’s right to pursue
a direct appeal has been reinstated in the Wisconsin Court
of Appeals, and the constitutional violation of which he
complains has been cured. The court therefore correctly
dismissed his petition. See 28 U.S.C. § 2254(a).
Conclusion
For the foregoing reasons, we affirm the district court’s
dismissal of Mr. Gilmore’s petition for a writ of habeas
corpus.
A FFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—8-21-02

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