In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2906
JOHNNY W ELLS,
Plaintiff-Appellant,
v.
LEE RYK ER ,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 2536—Elaine E. Bucklo, Judge.
A RGUED S EPTEMBER 24, 2009—D ECIDED JANUARY 6, 2010
Before P OSNER, M ANION, and T INDER, Circuit Judges.
T INDER, Circuit Judge. On the morning of June 22, 1999,
Johnny Wells flagged down a Chicago city bus shortly
after it had left a stop. As the driver let Wells on the bus,
one of the passengers, Belinda Smith, frantically asked
the driver to let her off. She ran from the back of the bus
with Wells in hot pursuit. Gary Harris who, moments
before, had walked Smith to the bus stop, saw that she was
being pursued by Wells and moved to intervene. Wells
stabbed Harris in the left shoulder as he tried to defend
Smith and stabbed Smith in the back multiple times,
2 No. 08-2906
puncturing her lung, after Wells pushed her to the
ground. At trial, Smith and Harris both testified that
Wells screamed, “Bitch, I told you I was going to kill
you,” as he stabbed Smith.
It turns out that Wells was a former boyfriend of
Smith’s, that he had been stalking and threatening to kill
her, and that Smith had previously obtained a restraining
order against Wells. Unsurprisingly, a jury convicted Wells
of two counts of aggravated battery and one count
of attempted murder; but the jury acquitted him of
trying to murder Harris. Both before and during trial,
Wells expressed continued unhappiness with his counsel,
and several times had to be coaxed into accepting his
counsel’s assistance. After Harris and Smith testified,
Wells stood up in court and declared that they had per-
jured themselves.
He argues the same thing (albeit in a more decorous
manner) in the habeas petition before us. But Wells
notably does not argue that he did not stab Smith and
Harris, that he had not previously threatened Smith, or
that he did not stab Smith in the back as he chased
her down the street. Instead, he claims that his victims
perjured themselves when they said that he shouted,
“Bitch, I told you I was going to kill you” as he
stabbed Smith and that his lawyer should have impeached
them with allegedly inconsistent prior statements. We
do not see how Wells can possibly establish that his coun-
sel’s decision constituted sufficient prejudice to his case
for an ineffectiveness of counsel claim, but we must first
address the potential jurisdictional bar that may prevent
us from reaching the merits of the petition.
No. 08-2906 3
The jurisdictional thorniness arose after the district court
denied Wells’s habeas petition on the merits. The district
court issued its judgment and order on May 16, 2008.
Wells, through appointed counsel, filed a request for an
extension of time on June 13, 2008, to file a motion for
a certificate of appealability or a motion for reconsidera-
tion. The question is whether this motion for an extension
was sufficient to preserve our jurisdiction to hear the
case. Wells’s actual notice of appeal was filed July 29,
2008, almost a month and a half after the 30-day cutoff.
Federal Rule of Appellate Procedure 3(c) dictates that a
notice of appeal must “(A) specify the party or parties
taking the appeal . . . (B) designate the judgment, order, or
part thereof being appealed . . . and (C) name the court to
which the appeal is taken” and directs that “[a]n appeal
must not be dismissed for informality of form or title of
the notice of appeal . . . ” The time limit of 30 days for
the notice of appeal in a habeas case is established by
Fed. R. App. P. 4(a) because a petition seeking a writ of
habeas corpus is technically a civil proceeding. See
Holmes v. Buss, 506 F.3d 576, 578 (7th Cir. 2007). While
the 30-day time limit for the filing of a notice of appeal is
a jurisdictional requirement, see Bowles v. Russell, 551 U.S.
205, 209-10 (2007), the Supreme Court has held that courts
should liberally construe the rule to accept jurisdiction if
a party files the “functional equivalent” of a notice of
appeal, Smith v. Barry, 502 U.S. 244, 248 (1992). The purpose
of the notice of appeal requirement “is to ensure that
the filing provides sufficient notice to other parties and
the courts. Thus, the notice afforded by a document . . .
4 No. 08-2906
determines the document’s sufficiency as a notice of
appeal.” Id. (citation omitted).
Wells’s motion in this case was captioned “Petitioner’s
Motion for Extension of Time to File a Motion for Certifi-
cate of Appealability or a Motion for Reconsideration.” We
note, at the outset, that the extension of time to seek a
motion for reconsideration was not sufficient to toll the 30-
day window because an extension of a motion under
Fed. R. Civ. P. 59(e) is forbidden by Fed. R. Civ. P. 6(b)(2).
See Bernstein v. Lind-Waldock & Co., 738 F.2d 179, 182
(7th Cir. 1984). The sole question, therefore, is whether a
motion for extension of time to file the certificate
of appealability is sufficient to serve as the functional
equivalent of a notice of appeal.
We have held that at least in some circumstances a
motion for an extension constitutes a notice of appeal.
Listenbee v. City of Milwaukee, 976 F.2d 348, 350-51 (7th Cir.
1992). Similarly, we have held that an application for
a certificate of probable cause (the precursor to the certifi-
cate of appealability) from the district court satisfies
the notice of appeal requirement. Bell v. Mizell, 931 F.2d
444, 444-45 (7th Cir. 1991) (per curiam); see also Marmolejo
v. United States, 196 F.3d 377, 378 (2d Cir. 1999) (per
curiam). We must determine whether a combination of the
two, a motion for an extension of time in which to seek
a certificate of appealability, is too attenuated from the
formal requirements of Rule 4 to provide the requisite
notice to the appellee.
One may wonder why the motion for extension of time,
which was granted, did not toll the 30-day limit until the
No. 08-2906 5
end of the extension period, thus making Wells’s request
for a certificate of appealability, which was also granted,
within that window a sufficient vehicle to establish appel-
late jurisdiction. But it’s important to remember that a
certificate of appealability is only a functional equivalent
of a notice of appeal; it was still incumbent on Wells to file
a notice of appeal during the 30-day window because he
never tried to extend the time to file a notice of appeal.
These waters are muddy; it’s unclear why any habeas
petitioner in our circuit would need to file a notice of
appeal if he also requests a certificate of appealability
within 30 days—each has been construed in this circuit as
its counterpart. See 7th Cir. R. 22(b)(2); see also Tucker v.
Kingston, 538 F.3d 732, 734 (7th Cir. 2008); Bell, 931 F.2d at
444. (Of course, a petitioner filing only a notice of appeal is
hard-pressed to make the requisite showing for a certificate
of appealability. See West v. Schneiter, 485 F.3d 393, 394-95
(7th Cir. 2007).) So, why should an extension of time to
seek a certificate not also extend the time to file a notice
of appeal? We need not reach this issue in light of our
determination that the motion for an extension of time to
seek a certificate of appealability in this instance suffices
to serve as the functional equivalent of a notice of appeal.
Wells argues that his motion served as the functional
equivalent of a notice of appeal because it specified the
party taking the appeal and the order being appealed,
and, while it did not specify the court to which the
appeal is being taken, we have allowed appeals where the
“intention to appeal to a certain court may be inferred
from the notice and the defect has not misled the appellee.”
Ortiz v. John O. Butler Co., 94 F.3d 1121, 1125 (7th Cir. 1996).
6 No. 08-2906
Here, there is no allegation that the appellee was misled
and the intent to appeal to this court is obvious—the term
“certificate of appealability” necessarily refers to an appeal
to the relevant court of appeals. See 28 U.S.C. § 2253
(allowing review of a final order “by the court of appeals
for the circuit in which the proceeding is held” only if a
“circuit justice or judge issues a certificate of
appealability”); cf. United States v. Musa, 946 F.2d 1297,
1301 (7th Cir. 1991) (concluding that a notice of appeal
conveyed fair notice, even though it specified the
incorrect circuit court of appeals to which the appeal was
to be taken).
The state argues that the problem is not that the motion
did not convey to which court Wells intended to appeal
but that it did not convey any intention to appeal at all,
and in fact indicated an intention to do the opposite—seek
reconsideration in the district court. As we noted above,
the extension sought on the motion for reconsideration
was unavailable, so this motion could only act as a motion
for an extension of time to seek a certificate of
appealability. And that aspect of the motion conveyed
the needed information to the warden and the State
of Illinois that an appeal would be taken to this court.
See Smith, 502 U.S. at 248 (“[T]he notice afforded by a
document, not the litigant’s motivation in filing it, deter-
mines the document’s sufficiency as a notice of appeal.”).
As we mentioned above, the motion for an extension of
time to request a certificate of appealability is an attenu-
ated example of a functional equivalent to a notice of
appeal, and probably lies at the outer limit of what
motions may suffice under Smith v. Barry. But, we are
No. 08-2906 7
confident that the appellant’s motion in this case served
adequate notice under the Rule. Accordingly, we have
jurisdiction to hear Wells’s appeal.
Having said that, the appeal is meritless. As we indicated
above, the only issue is whether Wells was deprived of
the effective assistance of counsel at trial. The peg he
hangs his claim on is an alleged inconsistency in the trial
testimony of Smith and Harris, who both testified that he
shouted, “Bitch, I told you I was going to kill you,” and
their police statements which do not report any such
damning utterance during the attack. Wells argues that
his counsel should have impeached both witnesses
with their police statements.
Two issues were raised by the respondent to
counter Wells’s ineffective assistance argument. First,
Smith lay in a hospital for five days suffering from her
punctured lung; her statement was taken during this stay.
Any inconsistency in her testimony could have easily
been explained to the jury as a product of the stress
under which it was given. The ease of explanation miti-
gates any prejudicial impact of the alleged failure to
impeach. Second, Illinois law provides that a witness can
only be impeached by a prior inconsistent statement that
is “in her own words or substantially verbatim.” People v.
Hood, 593 N.E.2d 805, 812 (Ill. App. Ct. 1992). The respon-
dent argues that the statements at issue here do not
meet this standard. For his part, Wells argues that the
statements at issue here would have passed muster for
impeachment purposes under Illinois law. See People v.
Bassett, 307 N.E.2d 359, 362-63 (Ill. 1974) (holding that
8 No. 08-2906
rough notes of police interviews should be provided to
defendant for impeachment purposes).
We can safely lay those issues aside, because the case
can be decided simply on the grounds that any alleged
deficiency in Wells’s counsel’s performance on this issue
could in no way be prejudicial to the outcome of the
trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984)
(“[A showing of prejudice] requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.”). First degree murder
in Illinois requires an intent to kill or do great bodily
harm to an individual. 720 Ill. Comp. Stat. 5/9-1(a). De-
prived of the challenged testimony, a rational jury surely
would have convicted Wells on the uncontested facts that
he stabbed his ex-girlfriend in public in broad
daylight, that he stabbed her multiple times in the back
after chasing her down, that he stalked and had previously
threatened to kill her, and that he only stopped
stabbing her after a passing car tried to run him down. The
requisite intent for first degree murder was thus independ-
ently and amply demonstrated absent the challenged
testimony. “Intent may be inferred from the character of
the act. It is not necessary to directly prove that
defendant had the intent to murder; all that needs to be
shown is that defendant voluntarily and willfully commit-
ted an act, the natural tendency of which was to cause
death or great bodily harm.” People v. Lee, 628 N.E.2d 436,
440 (Ill. App. Ct. 1993) (citation omitted). Accordingly, we
A FFIRM the district court.
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