In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1521

Shawn Owens,

Petitioner-Appellant,

v.

William E. Boyd, Warden,
Western Illinois Correctional Center,

Respondent-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 5366--Charles P. Kocoras, Judge.


Argued November 15, 2000--Decided December 19, 2000



  Before Posner, Easterbrook, and Kanne, Circuit Judges.

  Easterbrook, Circuit Judge. A state prisoner who
wants collateral relief from federal court must
file the federal petition within one year from
the latest of:


(A) the date on which the judgment became final
by the conclusion of direct review or the
expiration of the time for seeking such review;

(B) the date on which the impediment to filing
an application created by State action in
violation of the Constitution or laws of the
United States is removed, if the applicant was
prevented from filing by such State action;

(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by
the Supreme Court and made retroactively
applicable to cases on collateral review; or

(D) the date on which the factual predicate of
the claim or claims presented could have been
discovered through the exercise of due diligence.


28 U.S.C. sec.2244(d)(1). For Shawn Owens, who
has been convicted of murder and sentenced to 50
years in prison, the conclusion of direct review
occurred on June 30, 1997, when the state’s
appellate court affirmed his conviction and
sentence. See Gutierrez v. Schomig, No. 00-1384
(7th Cir. Nov. 30, 2000) (time begins with final
decision, not on the later expiration of the time
to seek additional review). Nothing more happened
until March 18, 1999, when Owens sought
postconviction review in state court. A state
judge denied this petition without explanation.
One possible reason: the petition was untimely
under state law. See 725 ILCS 5/122-1(c). Owens
did not appeal. Because the state petition was
untimely, 28 U.S.C. sec.2244(d)(2) did not
exclude even the short time it was pending. See
Artuz v. Bennett, 121 S. Ct. 361, 364 & n.2 (U.S.
Nov. 7, 2000); Freeman v. Page, 208 F.3d 572 (7th
Cir. 2000). Five months later, in August 1999,
Owens commenced this proceeding under 28 U.S.C.
sec.2254. Again he lost. The district court held
that the petition had been filed too late. 2000
U.S. Dist. Lexis 606 (N.D. Ill. Jan. 19, 2000).

  After denying the petition, the district court
issued a certificate of appealability identifying
the application of sec.2244(d)(1) as the issue
for appeal. This was a mistake. "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)(2), (3). Whether a given petition is
timely is a question under sec.2244, not under
the Constitution, and therefore an error in
treating a collateral attack as untimely is not
enough to support a certificate of appealability.
United States v. Marcello, 212 F.3d 1005 (7th
Cir. 2000). See also Williams v. United States,
150 F.3d 639 (7th Cir. 1998); Young v. United
States, 124 F.3d 794, 798-99 (7th Cir. 1997).

  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. See Slack v. McDaniel, 120 S. Ct.
1595, 1604 (2000). That way prisoners with strong
constitutional claims won’t be stymied by
debatable decisions on statutory obstacles. As is
often the case, however, the parties ignored this
certificate’s shortcoming and proceeded to brief
only the statutory question. Owens has not
attempted to demonstrate that his constitutional
claim (ineffective assistance of counsel in the
state proceedings) would support a certificate of
appealability, nor did the district court’s
opinion hint that it viewed this theory of relief
as substantial, so we are not inclined to add a
constitutional subject to the certificate in
order to rescue matters. Still, Young holds and
Marcello reiterates that a defect in a
certificate of appealability is not a
jurisdictional flaw. See also Romandine v. United
States, 206 F.3d 731, 734 (7th Cir. 2000).
Contra, United States v. Cepero, 224 F.3d 256 (3d
Cir. 2000) (proper certificate of appealability
is essential to appellate jurisdiction). Because
the state has ignored the limitations that
sec.2253(c)(2) places on a court’s power to issue
a certificate of appealability, it has forfeited
the benefits of that statute. We proceed to
resolve the issue certified by the district
court.

  Jerome Allen was shot in the head in January
1993. Owens supplied the gun (an AK-47) that fired
the bullets, and he may have pulled the trigger.
At trial Owens testified (consistent with his
pretrial statements to the police) that he
produced the gun at the demand of his gang’s
leader, believing that Allen would be robbed but
not killed. Given theories of accountability
(such as aiding and abetting, or the felony-
murder doctrine), that belief was no defense. So
Owens’s lawyer added (and Owens himself
testified) that he feared violence at the hands
of fellow gang members if he did not assist his
leader’s plan. The trial court denied counsel’s
request for a jury instruction on this theory of
defense, and the state’s appellate court affirmed
in an unpublished opinion, ruling that coercion
is not a defense to a charge of murder. See
People v. Glecker, 82 Ill. 2d 145, 411 N.E.2d 849
(1980). The appellate court held that, although
People v. Serrano, 286 Ill. App. 3d 485, 676
N.E.2d 1011 (1st Dist. 1997), on which Owens had
relied, permits a coercion defense to a charge of
armed robbery, it does not allow that defense to
a charge of murder. Deeming the legal position
hopeless, the public defender’s office informed
Owens that it would not seek discretionary review
in the Supreme Court of Illinois, though the
office explained that Owens could seek review pro
se (a step Owens did not take).

  Owens’s current position is one of cascading
ineffective assistance of counsel: he contends
that trial counsel was ineffective for making a
doomed coercion defense; that appellate counsel
was ineffective for not arguing that trial
counsel had been ineffective (attempting,
instead, to vindicate trial counsel’s strategy by
relying on Serrano); and that the public defender
was ineffective for failing to seek discretionary
review by the state’s highest court on the ground
that both trial and appellate counsel had been
ineffective. The first variation is weak: Owens
does not tell us what better defense was
available, given his own statements admitting
complicity. The second can be no stronger than
the first and seems weaker, for reliance on
Serrano appears to be an effort to make the best
of a bad situation. The third variation is
frivolous, for there is no constitutional right
to any assistance of counsel in seeking
discretionary, third-tier review, Ross v.
Moffitt, 417 U.S. 600 (1974), and shortcomings of
counsel at that stage therefore cannot violate
the sixth amendment. Wainwright v. Torna, 455
U.S. 586 (1982). But the third variation sets up
Owens’s contention that his federal petition is
timely. He says that he did not realize in June
1997 that his appointed lawyer was leaving him to
his own devices, and that he did not appreciate
until March 1998 that no request for
discretionary review had been filed. Then, Owens
contends, he spent a further nine months
investigating what he could do about his
situation, finally concluding in December 1998
that he could seek collateral relief on the
ground of ineffective assistance. According to
Owens sometime in December 1998 was "the date on
which the factual predicate of the claim or
claims presented could have been discovered
through the exercise of due diligence",
sec.2244(d)(1)(D), and thus only then that the
year in which to seek federal review commenced.

  Owens’s approach disregards the language of the
statute. He proposes that the year to file a
federal petition begins when a prisoner actually
understands what legal theories are available.
That is not what sec.2244(d)(1) says. First, the
time commences when the factual predicate "could
have been discovered through the exercise of due
diligence", not when it was actually discovered
by a given prisoner. Second, the trigger in
sec.2244(d)(1)(D) is (actual or imputed)
discovery of the claim’s "factual predicate", not
recognition of the facts’ legal significance.
Most federal statutes of limitations are injury-
based. Unlike some state systems, which start the
time only when a party knows (or should
recognize) that a legal wrong has been done,
federal statutes use objective indicators as
triggers. See United States v. Kubrick, 444 U.S.
111 (1979); Fujisawa Pharmaceutical Co. v.
Kapoor, 115 F.3d 1332 (7th Cir. 1997); Goodhand
v. United States, 40 F.3d 209 (7th Cir. 1994);
Tregenza v. Great American Communications Co., 12
F.3d 717 (7th Cir. 1993). Section 2244(d)(1)(D)
follows the norm for a federal statute of
limitations. Time begins when the prisoner knows
(or through diligence could discover) the
important facts, not when the prisoner recognizes
their legal significance. If sec.2244(d)(1) used
a subjective rather than an objective standard,
then there would be no effective time limit, as
Owens’s case illustrates. Like most members of
street gangs, Owens is young, has a limited
education, and knows little about the law. If
these considerations delay the period of
limitations until the prisoner has spent a few
years in the institution’s law library, however,
then sec.2244(d)(1) might as well not exist; few
prisoners are lawyers.

  Affirmance of Owens’s conviction in June 1997
starts the time under sec.2244(d)(1)(A). Section
2244(d)(1)(D) gives defendants the benefit of a
later start if vital facts could not have been
known by the date the appellate process ended.
Yet the principal fact setting the stage for the
current ineffective-assistance claim--that
Owens’s trial counsel attempted to present a
coercion defense--was known at trial. Likewise
Owens knew that the attempt was unsuccessful,
because the trial judge declined to instruct the
jury that coercion was a defense. If Owens had a
better defense, he knew that too (though he may
not have understood the legal utility of facts
that were not presented at trial). With respect
to the claim of ineffective assistance on appeal,
again the principal fact--that appellate counsel
pitched his argument on Serrano rather than
attacking the work of trial counsel--was readily
available to Owens before the appellate decision.
All he had to do was read the brief filed on his
behalf. So for Owens the time specified by
sec.2244(d)(1)(D) ends no later than that
specified by sec.2244(d)(1)(A). Counsel’s failure
to seek discretionary review in the state’s
supreme court is legally irrelevant given Moffitt
and Torna, but at all events the facts underlying
this claim also could have been discovered by
August 4, 1997 (the last date for a petition, see
Ill. Sup. Ct. R. 315(b)); the lack of a petition
was a matter of public record, which reasonable
diligence could have unearthed. Owens almost
certainly had actual knowledge; after all, the
public defender’s office sent him a letter
revealing that it would not file a petition, and
if he didn’t understand the letter all Owens had
to do was ask his appellate lawyer what it meant.
Thus the very latest starting date was August 4,
1997, and the statutory year expired long before
Owens filed his federal petition.

  Recharacterizing Owens’s argument as a request
for "equitable tolling" adds nothing;
sec.2244(d)(1)(D) is itself a kind of tolling
rule, see Taliani v. Chrans, 189 F.3d 597, 598
(7th Cir. 1999), and it would be inappropriate
for the judiciary to add time on a theory that
would amount to little more than disagreement
with the way Congress wrote sec.2244(d). Tolling
may be available when some impediment of a
variety not covered in sec.2244(d)(1) prevents
the filing of a federal collateral attack, see
Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.
2000), but Owens does not identify any such
impediment.

  Owens believes that he can avoid sec.2244(d)(1)
by recharacterizing his petition as a request for
habeas corpus under 28 U.S.C. sec.2241 or coram
nobis under the All-Writs Act, 28 U.S.C.
sec.1651(a). Not so. Section 2244(d)(1) applies
to every "application for a writ of habeas corpus
by a person in custody pursuant to the judgment
of a State court." It does not distinguish
between applications under sec.2241 and those
under sec.2254. Anyway, as the Supreme Court
observed in Felker v. Turpin, 518 U.S. 651, 662
(1996), and we reiterated in Walker v. O’Brien,
216 F.3d 626, 633 (7th Cir. 2000), every
collateral attack by a state prisoner on a final
judgment of conviction necessarily depends on
sec.2254. It is not possible to escape its
limitations by citing some other statute. The
All-Writs Act has even less to offer Owens than
does sec.2241, because writs in the nature of
coram nobis are limited to former prisoners who
seek to escape the collateral civil consequences
of wrongful conviction. United States v. Morgan,
346 U.S. 502 (1954); United States v. Bush, 888
F.2d 1145, 1147 (7th Cir. 1989). Persons still in
custody must look to sec.2254 or sec.2255 for
relief; they cannot use sec.1651(a) to escape
statutory restrictions on those remedies.
Carlisle v. United States, 517 U.S. 416, 428-29
(1996); Pennsylvania Bureau of Correction v.
United States Marshals Service, 474 U.S. 34, 43
(1985).

Affirmed
