In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3559
ANTHONY BARNETT,
Petitioner-Appellant,
v.
RON NEAL, Superintendent, Indiana State Prison,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:10-cv-157 — Theresa L. Springmann, Chief Judge.
____________________
ARGUED APRIL 21, 2017 — DECIDED JUNE 20, 2017
____________________
Before WOOD, Chief Judge, SYKES, Circuit Judge, and
COLEMAN, District Judge. ∗
WOOD, Chief Judge. For more than a decade,
Anthony Barnett has been trying to set aside his Indiana
convictions for felony battery, felony burglary, felony
intimidation, and being a habitual criminal. He thought that
∗ Of the Northern District of Illinois, sitting by designation.
2 No. 15-3559
he had achieved success when the federal district court issued
a conditional writ of habeas corpus in response to his petition,
but the writ promised less than he thought. It offered the state
the choice between releasing him outright, or giving him a
new direct appeal in the state court. A procedural snarl
ensued, at the end of which the district court gave the state
extra time to seek the new appeal. Believing that he now has
an unconditional right to immediate release, Barnett has
appealed. We conclude that the district court was entitled to
handle the matter as it did, and so we affirm its judgment.
I
Barnett’s underlying crimes have little to do with this
appeal, which centers instead on some Indiana rules of
criminal procedure and his federal habeas corpus action. We
therefore omit any discussion of the underlying crimes. On
December 13, 2002, the state returned a single charge of felony
battery against Barnett. At that time, Indiana courts
established an “omnibus date” in criminal cases; substantive
amendments to charges had to be submitted no later than
30 days before that date. See Shaw v. Wilson, 721 F.3d 908, 911
(7th Cir. 2013) (citing Ind. Code § 35-34-1-5 (1982)). The trial
court set the omnibus date for January 7, 2003, and so the last
day for substantive amendment was December 8, 2002.
Notwithstanding that fact, in February 2003 the prosecutor
added felony burglary, felony intimidation, and habitual
offender charges to the case. No one—in particular Barnett’s
trial counsel—seemed to notice the procedural misstep, and
Barnett was later convicted on all charges and sentenced to
80 years’ imprisonment. Barnett appealed, but his appellate
lawyer also overlooked this problem.
No. 15-3559 3
Barnett, however, realized that he had an issue worth pur-
suing, and he did just that in both state post-conviction pro-
ceedings and in a petition for a writ of habeas corpus under
28 U.S.C. § 2254. He was unsuccessful until, just after the dis-
trict court denied his section 2254 petition, this court released
Shaw, which issued a writ of habeas corpus for an Indiana pe-
titioner on precisely the same theory Barnett was pursuing.
By that time, Barnett’s case had reached this court. We re-
manded it to the district court for reconsideration in light of
Shaw, and the district court granted relief in an order dated
June 1, 2015. The language of that order is critical to the pre-
sent appeal: it said “[w]ithin 120 days of this Order, the State
must either release the Petitioner or grant him leave to file a
new direct appeal with the assistance of counsel.”
Barnett waited to see what would happen. When the state
had done nothing as of September 29, 2015 (the 120-day
mark), he took swift action. The very next day, he filed a re-
quest for immediate release. Indiana responded later that day.
It asserted that it had misunderstood the June 1 order “as re-
quiring the state courts to grant [Barnett] a new appeal upon
his request.” The state also reported that simultaneously with
its response to Barnett’s motion for immediate release, it had
filed a request for a direct appeal in the state courts on Bar-
nett’s behalf. It asked the district court to extend the release
date for 30 days so that the Indiana Court of Appeals would
have time to decide whether to grant the new appeal. In an
order dated October 14, 2015, the district court granted the
state’s request and extended the time to comply with the con-
ditional writ to October 29, 2015.
The next day, October 15, 2015, Barnett filed a motion pur-
portedly under Federal Rule of Civil Procedure 59(a) to alter
4 No. 15-3559
or amend the October 14 order. His motion once again sought
immediate release. The court denied that motion in an order
dated November 12, 2015, because the state had notified it
that on October 27, 2015, the Indiana Court of Appeals had
granted leave for Barnett to file a new appeal and had ordered
a hearing in the trial court for purposes of appointing counsel
for Barnett.
Barnett filed a Notice of Appeal in this court from the
district court’s October 14 order granting the state extra time
to comply with the conditional writ, and from its November
12 order denying reconsideration of the October 14 order. This
court construed his Notice of Appeal to include a request for
a certificate of appealability, which we granted on
November 7, 2016.
II
The parties have exchanged words over the question
whether a certificate of appealability was necessary for this
appeal, but we see no need to delve into that question. These
proceedings are more like post-judgment compliance pro-
ceedings than a direct appeal—neither the state nor Barnett is
challenging the substance of the district court’s June 1 order
issuing the conditional writ. The statute requiring a certificate
of appealability, 28 U.S.C. § 2253, requires one in an appeal
“from the final order in a proceeding under section 2255.”
28 U.S.C. § 2253(c)(1)(B). That is a poor description of this ap-
peal, and so we think it more likely that the requirement for a
certificate of appealability does not apply here. But even if it
did, this court took the precaution of issuing such a certificate,
and our certificate was broad enough to encompass the issues
Barnett is presenting to us. Specifically, it orders the parties to
“address whether the district court had authority to grant an
No. 15-3559 5
extension of time after the time to comply [with the condi-
tional writ] had expired.” That procedural inquiry is anteced-
ent to the question whether Barnett had a constitutional right
to immediate release as of September 30, 2015, under the
June 1 writ. See Slack v. McDaniel, 529 U.S. 473, 484–85 (2000).
The next question we must address is what sort of animal
the state’s motion of September 20, 2015, was: A motion under
Federal Rule of Civil Procedure 60(b), to alter or amend the
judgment? A motion pursuant to post-judgment proceedings,
and if so, governed by what law? What we do know is that
the state’s motion came long after the 28 days permitted by
Federal Rule of Civil Procedure 59(d) for relief from the June 1
judgment. It thus seems to us that the best characterization of
the state’s motion is as a request for modification of the June 1
order to extend the time to decide how to respond from
September 29 until October 29. Such a motion can be filed
under Rule 60(b)(1). This appears to reflect the district court’s
thinking: The court accepted the state’s argument that the
June 1 order left unclear the question who was to pursue the
possible new appeal in the Indiana courts. This reasoning
calls to mind Rule 60(b)(1), which speaks of “mistake,
inadvertence, surprise, or excusable neglect.” Such a motion
can be filed within one year of the underlying order or
judgment, see FED. R. CIV. P. 60(c)(1), a deadline the state easily
met.
Barnett argues that the state’s motion fell instead under the
catch-all provision of Rule 60(b)(6), because the state did not
specify the subsection under which it was proceeding. But we
are less worried about labels than substance, and we have
thus held that “if the asserted grounds for relief fall within the
terms of the first three clauses of Rule 60(b), relief under the
6 No. 15-3559
catchall provision is not available.” Wesco Prod. Co. v. Alloy
Auto. Co., 880 F.2d 981, 983 (7th Cir. 1989); accord Arrieta v.
Battaglia, 461 F.3d 861, 865 (7th Cir. 2006). We assume that Bar-
nett prefers the Rule 60(b)(6) ground over the Rule 60(b)(1)
ground because it is quite difficult to show the “extraordinary
circumstances” the former requires for relief. Moje v. Fed.
Hockey League, LLC, 792 F.3d 756, 758 (7th Cir. 2015). But relief
under Rule 60(b)(1) is also hard to obtain; it is not a substitute
for an appeal, and so something more than ordinary error
must be shown before relief will be granted. The choice of
subsection does not, in any event, drive our decision here.
In many ways, this is a close case. We find it hard to believe
that Indiana really thought that Barnett would want a second
appeal, if outright freedom would be his after 120 days. The
district court’s June 1 order issuing the conditional writ
seemed to leave the ball in the state’s court: either take what-
ever steps are necessary to arrange for the new appeal, or let
Barnett go. If the state was genuinely in doubt, nothing pre-
vented it from asking the district court to clarify its order.
From this perspective, its failure to do so does not seem to re-
flect “mistake, inadvertence, surprise, or excusable neglect.”
On the other hand, there were some hidden problems in
the court’s order—problems serious enough that a reasonable
person might think that the state’s failure to take any action
within the allotted 120 days stemmed from mistake or excus-
able neglect. Prominent among those problems is the fact that
the executive authorities of the state—Superintendent
Ron Neal, the Attorney General, and his subordinates—do
not have the power on their own to grant a new appeal. The
Indiana Constitution provides for a government in which the
legislative, executive, and judicial powers are separated. See
No. 15-3559 7
Ind. Const. art. III, § 1; see also State v. Monfort, 723 N.E.2d 407,
411 (Ind. 2000). Note that this problem does not arise in the
more typical conditional writs, in which the state is given the
choice of instituting a new prosecution or releasing the peti-
tioner. The executive authorities control prosecutions, but
only the judicial branch can decide whether the criteria for a
new appeal have been satisfied.
Moreover, the state attorney general does not represent
Barnett, and so the state may have seen it as odd to be peti-
tioning the state courts on Barnett’s behalf. That strangeness
dissipates somewhat if one bears in mind that the alternative
was to set Barnett free, but the district court found the state’s
confusion understandable, and we cannot say that this was an
abuse of discretion.
Had these matters been explored, there would have been
other ways to solve the problem. Perhaps the district court
might have required Barnett to seek a new appeal, and only if
the state appellate court turned him down would he be enti-
tled to release. Perhaps it would have been enough simply to
spell out the fact that the court was requiring the attorney gen-
eral to file a motion with the appellate court informing it of
the conditional writ and requesting the court to open a new
appeal—just as the state did when its back was against the
wall on September 30, 2015. Perhaps another solution would
have occurred to the parties.
We close with one final point. The fact that the district
court did not issue its order extending the time for acting on
the conditional writ before the original time ran out is not a
problem. We held in Gilmore v. Bertrand, 301 F.3d 581, 583
(7th Cir. 2002) (per curiam), that “[l]ogically, the equitable
8 No. 15-3559
power of the district court in deciding a habeas corpus peti-
tion includes the ability to grant the state additional time be-
yond the period prescribed in a conditional writ to cure a con-
stitutional deficiency.” The underlying constitutional viola-
tion about which Barnett was complaining was ineffective as-
sistance of appellate counsel, in violation of the Sixth Amend-
ment to the U.S. Constitution, as applied to the states through
the Fourteenth Amendment. The district court correctly rec-
ognized that one remedy for that violation was a new appeal
conducted by constitutionally effective counsel. That is the
remedy Indiana is now prepared to give to Barnett, and alt-
hough he obviously would have liked more, the state was en-
titled to the more precisely tailored option.
We AFFIRM the judgment of the district court.