Keith Chambers v. USA

Filing

Filed opinion of the court by Judge Sykes. AFFIRMED. Richard A. Posner, Circuit Judge; Michael S. Kanne, Circuit Judge and Diane S. Sykes, Circuit Judge. [6860634-1] [6860634] [16-2977]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-2977
KEITH E. CHAMBERS,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 10-cv-3191 — Sue E. Myerscough, Judge.

____________________
ARGUED JULY 6, 2017 — DECIDED AUGUST 10, 2017
____________________
Before POSNER, KANNE, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Keith Chambers, a federal prisoner,
appeals from the district court’s denial of his motion under
Rule 60(b) of the Federal Rules of Civil Procedure for relief
from the judgment in his habeas corpus proceeding. See
28 U.S.C. § 2255. Chambers argues that his postconviction
counsel abandoned him by failing to withdraw from his case
on appeal, depriving him of the opportunity to file a memorandum in support of his request to this court for a certifi-

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cate of appealability. We conclude that the district court
properly avoided ruling on the merits of Chambers’s
Rule 60(b) motion and therefore affirm the judgment.
Chambers pleaded guilty in 2008 to distributing and possessing child pornography. See 18 U.S.C. § 2252A(a)(2)(A),
(a)(5)(B). At sentencing his attorney argued for a downward
variance from the guideline range based on Chambers’s
diminished capacity, see U.S.S.G. § 5K2.13, and his struggles
with impulse control. Judge Jeanne Scott sentenced
Chambers to 168 months in prison, the low end of the range.
In doing so she remarked that Chambers’s mental-health
issues did not warrant a sentence outside the guideline
range. But “in recognition of the good things [he had] done
in [his] life,” the judge thought a sentence at the low end of
the range was appropriate. Chambers voluntarily dismissed
his direct appeal.
Chambers next filed a motion attacking his sentence under 28 U.S.C. § 2255. He asserted that his trial counsel was
ineffective during the sentencing phase because he did not
conduct any presentence investigation, promised him a fiveyear sentence, and failed to present mitigating evidence.
Judge Richard Mills, the new presiding judge, ordered an
evidentiary hearing and appointed John Gray Noll and
Daniel Fultz to represent Chambers under the Criminal
Justice Act. See 18 U.S.C. § 3006A.
At the § 2255 hearing, Chambers testified that his trial
counsel, John Taylor, had strongly implied that he would get
a sentence of five to seven years, so he was shocked when
the judge imposed a term of fourteen years. Chambers also
asserted that Taylor should have obtained character witnesses and expert testimony to support his sentencing argu-

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ments. Taylor testified that he had advised Chambers about
the guideline range he faced, reviewed the presentence
report with him, and never told Chambers he would receive
a five-year sentence. Taylor also explained that he decided
against having Chambers’s therapist or psychiatrist testify at
sentencing because it might “look like Chambers was trying
to make excuses” instead of accepting responsibility. (The
therapist happened to be Taylor’s wife.) Finally, Taylor
testified that he relied on the PSR to highlight the sentencing
factors under 18 U.S.C. § 3553(a).
Judge Mills denied Chambers’s § 2255 motion in a 76page opinion and declined to issue a certificate of appealability. Trial counsel’s performance was not deficient, the
judge concluded, because counsel sufficiently presented the
relevant mitigating evidence. The PSR thoroughly described
Chambers’s background and mental-health issues, and
counsel made arguments at sentencing regarding
Chambers’s diminished capacity and work history. Although “some areas could have been fleshed out further,” the
judge remarked that doing so “bore significant risk” because
expert testimony about his mental health could have been
damaging and Chambers’s crime might seem “even more
egregious” in light of his education and work record. Even if
counsel’s performance had been deficient, the judge ruled,
Chambers suffered no prejudice because it was not reasonably probable that he would have received a below-guideline
sentence. Judge Mills thought it unlikely that additional
evidence or argument in mitigation would have changed the
outcome because Judge Scott had already weighed
Chambers’s good deeds against the aggravating factors and
the risk that he might “commit a hands-on offense.”

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Unsatisfied, Chambers sought our review, and that is
when things went awry. Noll was listed as counsel of record
on appeal because he filed a notice of appeal, a docketing
statement, and later a status report. But Noll told Chambers
that he would not represent him any further. When
Chambers wrote to the clerk’s office asking for guidance on
filing a pro se memorandum in support of his request for a
certificate of appealability, the clerk’s office told him that he
was represented by counsel and that his attorney would
make any necessary filings. Chambers wrote back, explaining that Noll no longer represented him, but the clerk told
Chambers that Noll needed to file a motion to withdraw if
he no longer represented him. Although Chambers again
wrote to the clerk and even sought the district court’s help,
his efforts were unsuccessful in removing Noll as counsel of
record. In February 2013 we declined to issue a certificate of
appealability, explaining that after reviewing the record on
appeal, we found no substantial showing of the denial of a
constitutional right.
Chambers then commenced a flurry of communications
with this court and the district court in an effort to reopen
the matter but to no avail. For example, he filed a motion to
recall the mandate and a § 2244(b) application mislabeled as
a motion under Rule 60(b); both were unsuccessful.
Chambers eventually asked the district court for relief
from the judgment under Rule 60(b), which is the subject of
this appeal. He argued that he had been deprived of his
opportunity to be heard when he was blocked from filing a
pro se memorandum in support of his request for a certificate of appealability. He also filed what he called a “merito-

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rious defense paper” addressing the merits of his underlying
ineffective-assistance claim.
Judge Sue Myerscough, the third district judge assigned
to the case, denied the Rule 60(b) motion but concluded that
a certificate of appealability was warranted so that we could
consider whether Chambers may be entitled to relief “given
the unique nature of his circumstances.” The judge first
concluded that Chambers’s motion was a proper Rule 60(b)
motion because it challenged a procedural defect that affected the integrity of his original proceedings. Next the judge
rejected Chambers’s due-process argument
under
Rule 60(b)(4), noting that he had received a “considerable
amount of ‘process’” in the district court and that no rule
mandates that he be allowed to file papers supporting his
request for a certificate of appealability.
The judge thought that Chambers had a better argument
under Rule 60(b)(6), which requires “extraordinary circumstances.” Pointing to Ramirez v. United States, 799 F.3d 845
(7th Cir. 2015), the judge remarked that Chambers, like the
petitioner in Ramirez, was prevented from arguing to this
court why he should be granted a certificate of appealability.
The judge ultimately concluded, however, that she could not
grant Chambers any relief because she lacked the authority
to direct this court to allow Chambers to submit a memorandum in support of his request for a certificate of appealability. The judge recognized that Rule 60(b) allowed her to
remedy errors that occurred in the district court, but the rule
does not authorize a district judge to give directions to the
court of appeals.
On appeal Chambers argues that Judge Myerscough was
wrong to think that she lacked authority to grant his

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Rule 60(b) motion. He says the judge could have granted
relief based on the new and unforeseeable circumstances
beyond his control. The government counters that we have
already considered—and rejected—the issue of Noll’s abandonment of Chambers in denying his motion to recall the
mandate and his § 2244(b) application.
The government is correct. Judge Myerscough did not
abuse her discretion in declining to reach the merits of the
Rule 60(b) motion. The judge properly recognized that
although she has discretion to grant relief under Rule 60(b)
in many circumstances, she has no authority to order this
court to reopen Chambers’s appeal. Chambers contends that
the judge could have simply vacated the judgment, thereby
resetting the clock and providing him a fresh appeal, following the example in Williams v. Hatcher, 890 F.2d 993, 995–96
(7th Cir. 1989). But Williams is different because it dealt with
an error committed in the district court—the failure to file a
timely notice of appeal. Indeed, all of the cases Chambers
cites involved errors either committed or properly remedied
in the district court. See Maples v. Thomas, 132 S. Ct. 912, 927
(2012) (failure to appeal); Ramirez, 799 F.3d at 849 (same);
LSLJ P’ship v. Frito-Lay, Inc., 920 F.2d 476, 478 (7th Cir. 1990)
(subsequent change in law). He has not pointed to any case
giving the district court authority to remedy complications
occurring in the appellate court, nor have we found one.
The proper remedy for counsel’s error in the appellate
court is a motion to recall the mandate, which serves the
same purpose as a Rule 60(b) motion in the district court. See
Burris v. Parke, 130 F.3d 782, 783 (7th Cir. 1997). Chambers
sought that relief and we rejected it. He cannot now reliti-

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gate that claim in the district court through the vehicle of
Rule 60(b).
That said, even if we were to consider Chambers’s argument on the merits, he is not entitled to relief. Rule 60(b)(6)
relief requires extraordinary circumstances. Ramirez,
799 F.3d at 851. Chambers’s circumstances are not extraordinary. True, he was abandoned on appeal: Noll, as counsel of
record, did not obtain our consent to withdraw as required
by Circuit Rule 3(d) and thus left Chambers stranded and
without the ability to help himself. But Chambers has not
shown that he will suffer an injustice if he cannot file a new
request for a certificate of appealability. See Buck v. Davis,
137 S. Ct. 759, 778 (2017). Chambers argues that his original
request had little chance of success without a supporting
memorandum, citing West v. Schneiter: “[A] petitioner who
relies on his notice of appeal is hard put to meet the statutory standard … . A notice of appeal does not give reasons,
and a silent document rarely constitutes a ‘substantial
showing’ of anything.” 485 F.3d 393, 395 (7th Cir. 2007). But
in fact, each request for a certificate of appealability, whether
accompanied by a supporting memorandum or not, receives
our full consideration, and Chambers’s request was no
exception.
Moreover, we must consider “whether the underlying
claim is one on which relief could be granted.” Ramirez,
799 F.3d at 851; see also Buck, 137 S. Ct. at 780. Here we ask
whether Chambers’s appeal would have been certified had
he been allowed to file a supporting memorandum. It would
not have been certified. His claims are not debatable. The
mitigation evidence he says his trial counsel should have
presented—his military records, expert testimony about his

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mental health, and character witnesses—was adequately
covered in the PSR and arguments of counsel or easily could
have backfired on him, highlighting the inexcusable nature
of his crime and leaving him without a diminished-capacity
argument.
AFFIRMED.