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-
2 No. 16-2977

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-
No. 16-2977 3

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 76-

page 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.”
4 No. 16-2977

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-
No. 16-2977 5

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 
6 No. 16-2977

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-
No. 16-2977 7

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 
8 No. 16-2977

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.