When an attorney believes that a claim not certified for appeal is arguable, counsel should move the court to expand the certificate to include the claim.
“Counsel has no obligation to argue claims that are not certified for appeal. At least one court, if not two (as
when this court has issued the certificate or has beenasked to expand a certificate issued by a district court), has reviewed the record and decided that the non-certified claims do not satisfy the requirements in
§ 2253(c). If after an independent review of the record counsel agrees that the non-certified claims are not debatable, he or she can safely set aside the non-certified claims notwithstanding the petitioner-appellant’s desire to pursue those claims on appeal.”
“On the other hand, if appointed counsel concludes that one or more of the non-certified claims is debatable, the appropriate action is to ask this court to expand the certificate to include the additional claims. When a prisoner on collateral review files a pro se brief containing non-certified claims, we will construe the brief as an implicit request for certification. See, e.g., Schaff, 190 F.3d at 528. But we do not hold prisoners proceeding pro se to the same tandards of conduct we expect from attorneys: Counsel should not simply brief the additional claims, but should first request permission to do so.”
10-3318 Lavin v. Rednour
Appeal from the United States District Court for the Northern District of Illinois, Gottschall, J., Flaum, J.