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324 F.3d 521: William P. Ellzey, Petitioner-appellant, v. United States of America, Respondent-appellee
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United States Court of Appeals, Seventh Circuit. - 324 F.3d 521 Submitted January 31, 2003 Decided March 31, 2003 Rehearing and Rehearing En Banc Denied April 28, 2003
Timothy A. Bass (Submitted), Office of the U.S. Atty., Urbana Div., Urbana, IL, for Respondent-Appellee. Before EASTERBROOK, EVANS, and WILLIAMS, Circuit Judges.
Today on Verdict
The Ultimate GOP Obstructionism Is Secession, but That Will Never Happen
Justia columnist and former counsel to the president John EASTERBROOK, Circuit Judge. Dean comments on the sharp post-election increase in the number of petitions that have been ¶1 To appeal from the rejection of his collateral attack under 28 U.S.C. § 2255, sent to the White House by Americans, seeking certain states’ secession from William Ellzey needs a certificate of appealability. One potential problem is the Union—totaling 22 states, thus far. Related: Rule s we C ourt | hisupre me C ourt D e c is ion | Re pre s e nta tive C a s e s Cases Representative | A dminis tra tive A g e nc ie s timeliness: Of affirmed S conviction on May 10, 1999, in an unpublished order, By John Dean and the petition Ellzey filed on May 8, 2000, was a placeholder. It asserts that his lawyer furnished ineffective assistance at sentencing but supplies neither
ner-appellant, v. United States of America, Respondent-appellee :: US Court of Appeals Cases :: Ju…
factual detail nor legal elaboration. In the place provided for supporting facts and argument, Ellzey wrote: "will be amended within thirty (30) days." Ellzey filed this skeletal document to satisfy the period of limitations, with the plan of filing a real petition later — as he did on May 30, 2000. The prosecutor moved to dismiss, but the district judge held that Ellzey's original document met the statutory time limit (see § 2255 ¶ 6) and could be amended afterward not only with details about the sixth amendment theory but also to add new lines of argument, such as a challenge based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which was not decided until June 2000. Later the district judge denied the petition on the merits. See 210 F.Supp.2d 1046 (C.D.Ill.2002). Before considering whether Ellzey is entitled to a certificate of appealability, see 28 U.S.C. § 2253(c), we must decide which, if any, of his legal theories is timely. ¶2 One line from the motion to dismiss sums up the prosecutor's position: "Unfortunately for [Ellzey], there is no provision under 28 U.S.C. § 2255 for the filing of a `Notice of Intent to File 2255 Petition'". That's right. Cases such as Holman v. Gilmore, 126 F.3d 876, 879-80 (7th Cir. 1997), and Gosier v. Welborn, 175 F.3d 504, 506 (7th Cir.1999), hold that only documents attacking the conviction on the merits count as collateral attacks. Others — whether motions for the appointment of counsel or requests to save a place in line — do not suffice. The ninth circuit handled this differently. See Calderon v. United States District Court, 163 F.3d 530 (9th Cir.1998) (en banc). The technical question in Holman, Gosier, and Calderon was whether an application for appointment of counsel should be treated as a…