Davis v. Schwartz et al

Filing 29

WRITTEN Opinion entered by the Honorable Samuel Der-Yeghiayan on 12/15/2011: For the reasons stated below, Petitioner's request for a certificate of appealability is denied. Petitioner's motion for leave to proceed in forma pauperis 26 is denied as moot. Mailed notice(ph, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Samuel Der-Yeghiayan

CASE NUMBER

11 C 2998

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

12/15/2011

Joseph Davis (K-60509) vs. Gregory Schwartz, et al.

DOCKET ENTRY TEXT

For the reasons stated below, Petitioner’s request for a certificate of appealability is denied. Petitioner’s
motion for leave to proceed in forma pauperis [26] is denied as moot.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
This matter is before the court on Petitioner Joseph Davis’ (Davis) request for a certificate of
appealability. On October 6, 2011, the court denied Davis’ petition for a writ of habeas corpus (Petition)
brought pursuant to 28 U.S.C. § 2254. On October 18, 2011, Davis filed a pro se petition for a rehearing,
which the court liberally construed as a motion to alter or amend judgment. On November 9, 2011, the court
denied the motion. On December 13, 2011, Davis filed a notice of appeal relating to both the court’s denial
of the Petition and the court’s denial of the motion to alter or amend judgment.
Pursuant to Federal Rule of Appellate Procedure 4, “[i]n a civil case, except as provided in Rules
4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk
within 30 days after the judgment or order appealed from is entered.” Fed. R. App. P. 4(a)(1)(A). Pursuant
to Federal Rule of Appellate Procedure 4(a)(4), if a party files a motion to alter or amend the judgment under
Rule 59, “the time to file an appeal runs . . . from the entry of the order disposing of the . . . motion.” Fed. R.
App. P. 4(a)(4). In addition, pursuant to Federal Rule of Appellate Procedure 4(c)(1), “[i]f an inmate
confined in an institution files a notice of appeal in either a civil or a criminal case, the notice is timely if it is
deposited in the institution’s internal mail system on or before the last day for filing,” as evidenced by “a
Page
11C2998 Joseph Davis (K-60509) vs. Gregory Schwartz, et al.

1 of 4

STATEMENT
declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth
the date of deposit and state that first-class postage has been prepaid.” Fed. R. App. P. 4(c)(1). A district
court is authorized to extend the deadline for filing a notice of appeal “if: . . . a party so moves no later than
30 days after the time prescribed by this Rule 4(a) expires; and . . . that party shows excusable neglect or
good cause.” Fed. R. App. P. 4(a)(5).

The court denied Davis’ motion to amend or alter judgment on

November 9, 2011, and the court’s order was entered on that date. Davis therefore had until December 9,
2011 to file a notice of appeal relating to the court’s rulings. Davis’ notice of appeal was filed on December
13, 2011. Although Davis is presently incarcerated, Davis’ filing does not include any information making
Federal Rule of Appellate Procedure 4(c)(1) applicable. In addition, Davis has not filed any motion for an
extension of time to file a notice of appeal. Therefore, Davis’ appeal is untimely.
Although Davis’ appeal is untimely, even if Davis had filed the appeal in a timely fashion, to the
extent that it operates as a request for a certificate of appealability, the court would deny the request. See
West v. Schneiter, 485 F.3d 393, 394-95 (7th Cir. 2007)(stating that “[a] notice of appeal acts as a request for
a certificate whether or not the prisoner files a separate application”). If a court denies a petition for writ of
habeas corpus and the petitioner wishes to appeal, thereby challenging the decisions made by the state trial
courts, the petitioner must first attempt to obtain a certificate of appealability from the district court. 28
U.S.C. § 2253(c). A district court should only issue a certificate of appealability “if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The petitioner must also
show that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to
proceed further.’” Slack v. McDonnell, 529 U.S. 473, 484 (2000)(quoting Barefoot v. Estelle, 463 U.S. 880,
893 (1983)). When a petitioner’s request is premised solely upon the filing of a notice of appeal, the
petitioner “is hard put to meet the statutory standard. . . .” West, 485 F.3d at 394-95 (stating that “[a] notice
of appeal does not give reasons, and a silent document rarely constitutes a substantial showing of
anything”)(internal quotations omitted).
In denying the Petition, the court concluded that, based on 28 U.S.C. § 2244(d)(1)(A), the Petition
was filed after the statute of limitations period had expired and that Davis had not shown that the statute of
Page
11C2998 Joseph Davis (K-60509) vs. Gregory Schwartz, et al.

2 of 4

STATEMENT
limitations period should be equitably tolled with respect to the Petition. Davis has not shown that
reasonable jurists could debate whether the Petition should have been resolved differently on that issue and
has not shown that the issue deserves encouragement to proceed further on appeal.
In addition, the court also concluded that even if the Petition had been timely, it lacked merit. Davis
argued in the Petition that his custodial statement was the result of duress and coercion by police, that the
prosecutor relied on perjured testimony in proving the State’s case, and that the trial court abused its
discretion in disbelieving testimony presented by Davis. As indicated in this court’s prior ruling, Davis did
not point to sufficient evidence of coercion by police, nor show that there was insufficient evidence to
convict him in the absence of his statement. In addition, the court found that Davis failed to show that the
prosecutor relied on any perjured testimony by State witnesses, that the court could not have reasonably
believed the testimony of State witnesses, or that it was unreasonable for the trial court to disbelieve certain
testimony presented by Davis at trial. Davis has not shown that reasonable jurists could debate whether the
Petition should have been resolved differently on that issue and has not shown that the issue deserves
encouragement to proceed further on appeal.
Davis also argued in the Petition that he was denied his right to confrontation because the court
admitted into evidence a transcript of testimony of the victim, who was unavailable for trial. As indicated in
this court’s prior ruling, Davis failed to show that any of his constitutional rights were violated by the
absence of the victim at the trial. The record is clear that the victim was unavailable at the time of the trial as
a direct result of the injuries he sustained during the commission of the crime. Based on the above
considerations, Davis has not shown that reasonable jurists could debate whether the Petition should have
been resolved differently on that issue and has not shown that the issue deserves encouragement to proceed
further on appeal.
Further, Davis argued in the Petition that his trial counsel was not competent and that the trial court
should have conducted a hearing to evaluate his counsel. This court concluded that Davis had not shown that
his trial counsel acted outside the scope of effective assistance of counsel. Davis has not shown that
reasonable jurists could debate whether the Petition should have been resolved differently on that issue and
has not shown that the issue deserves encouragement to proceed further on appeal.
Page
11C2998 Joseph Davis (K-60509) vs. Gregory Schwartz, et al.

3 of 4

STATEMENT
In addition, Davis argued in the Petition that the trial court erred at sentencing by giving excessive
weight to an aggravating factor and by improperly sentencing Davis to an extended term sentence. This court
concluded that Davis had not shown that the trial court erred in any manner in sentencing Davis to an
extended sentence based on the serious crime involving the brutal burning of the victim. Davis has not
shown that reasonable jurists could debate whether the Petition should have been resolved differently on that
issue and has not shown that the issue deserves encouragement to proceed further on appeal.
Based on the above, Davis has not made a substantial showing of the denial of a constitutional right
and has not shown that a certificate of appealability is warranted in this case. Thus, even if Davis had filed a
timely appeal, the request for a certificate of appealability would be denied. In addition, based on the above,
Davis’ motion for leave to proceed on appeal in forma pauperis is denied as moot.

Page
11C2998 Joseph Davis (K-60509) vs. Gregory Schwartz, et al.

4 of 4