In the

United States Court of Appeals

For the Seventh Circuit

No. 00-1521

Shawn Owens,

Petitioner-Appellant,

v.

William E. Boyd, Warden,

Western Illinois Correctional Center,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 C 5366--Charles P. Kocoras, Judge.

Argued November 15, 2000--Decided December 19, 2000

 Before Posner, Easterbrook, and Kanne, Circuit Judges.

 Easterbrook, Circuit Judge. A state prisoner who

wants collateral relief from federal court must

file the federal petition within one year from

the latest of:

(A) the date on which the judgment became final

by the conclusion of direct review or the

expiration of the time for seeking such review;

(B) the date on which the impediment to filing

an application created by State action in

violation of the Constitution or laws of the

United States is removed, if the applicant was

prevented from filing by such State action;

(C) the date on which the constitutional right

asserted was initially recognized by the Supreme

Court, if the right has been newly recognized by

the Supreme Court and made retroactively

applicable to cases on collateral review; or

(D) the date on which the factual predicate of

the claim or claims presented could have been

discovered through the exercise of due diligence.

28 U.S.C. sec.2244(d)(1). For Shawn Owens, who

has been convicted of murder and sentenced to 50
years in prison, the conclusion of direct review

occurred on June 30, 1997, when the state’s

appellate court affirmed his conviction and

sentence. See Gutierrez v. Schomig, No. 00-1384

(7th Cir. Nov. 30, 2000) (time begins with final

decision, not on the later expiration of the time

to seek additional review). Nothing more happened

until March 18, 1999, when Owens sought

postconviction review in state court. A state

judge denied this petition without explanation.

One possible reason: the petition was untimely

under state law. See 725 ILCS 5/122-1(c). Owens

did not appeal. Because the state petition was

untimely, 28 U.S.C. sec.2244(d)(2) did not

exclude even the short time it was pending. See

Artuz v. Bennett, 121 S. Ct. 361, 364 & n.2 (U.S.

Nov. 7, 2000); Freeman v. Page, 208 F.3d 572 (7th

Cir. 2000). Five months later, in August 1999,

Owens commenced this proceeding under 28 U.S.C.

sec.2254. Again he lost. The district court held

that the petition had been filed too late. 2000

U.S. Dist. Lexis 606 (N.D. Ill. Jan. 19, 2000).

 After denying the petition, the district court

issued a certificate of appealability identifying

the application of sec.2244(d)(1) as the issue

for appeal. This was a mistake. "A certificate of

appealability may issue . . . only if the

applicant has made a substantial showing of the

denial of a constitutional right . . . [and the

certificate] shall indicate which specific issue

or issues satisfy [that] showing". 28 U.S.C.

sec.2253(c)(2), (3). Whether a given petition is

timely is a question under sec.2244, not under

the Constitution, and therefore an error in

treating a collateral attack as untimely is not

enough to support a certificate of appealability.

United States v. Marcello, 212 F.3d 1005 (7th

Cir. 2000). See also Williams v. United States,

150 F.3d 639 (7th Cir. 1998); Young v. United

States, 124 F.3d 794, 798-99 (7th Cir. 1997).

 If the prisoner’s underlying constitutional

objection to his conviction is itself

substantial, then the district court may issue a

certificate on that issue (even though the

petition was denied without reaching it) and

append the statutory ground as an antecedent

issue to be resolved on appeal if it, too, is

substantial. See Slack v. McDaniel, 120 S. Ct.

1595, 1604 (2000). That way prisoners with strong

constitutional claims won’t be stymied by

debatable decisions on statutory obstacles. As is

often the case, however, the parties ignored this

certificate’s shortcoming and proceeded to brief

only the statutory question. Owens has not

attempted to demonstrate that his constitutional

claim (ineffective assistance of counsel in the

state proceedings) would support a certificate of

appealability, nor did the district court’s
opinion hint that it viewed this theory of relief

as substantial, so we are not inclined to add a

constitutional subject to the certificate in

order to rescue matters. Still, Young holds and

Marcello reiterates that a defect in a

certificate of appealability is not a

jurisdictional flaw. See also Romandine v. United

States, 206 F.3d 731, 734 (7th Cir. 2000).

Contra, United States v. Cepero, 224 F.3d 256 (3d

Cir. 2000) (proper certificate of appealability

is essential to appellate jurisdiction). Because

the state has ignored the limitations that

sec.2253(c)(2) places on a court’s power to issue

a certificate of appealability, it has forfeited

the benefits of that statute. We proceed to

resolve the issue certified by the district

court.

 Jerome Allen was shot in the head in January

1993. Owens supplied the gun (an AK-47) that fired

the bullets, and he may have pulled the trigger.

At trial Owens testified (consistent with his

pretrial statements to the police) that he

produced the gun at the demand of his gang’s

leader, believing that Allen would be robbed but

not killed. Given theories of accountability

(such as aiding and abetting, or the felonymurder doctrine), that belief was no defense. So

Owens’s lawyer added (and Owens himself

testified) that he feared violence at the hands

of fellow gang members if he did not assist his

leader’s plan. The trial court denied counsel’s

request for a jury instruction on this theory of

defense, and the state’s appellate court affirmed

in an unpublished opinion, ruling that coercion

is not a defense to a charge of murder. See

People v. Glecker, 82 Ill. 2d 145, 411 N.E.2d 849

(1980). The appellate court held that, although

People v. Serrano, 286 Ill. App. 3d 485, 676

N.E.2d 1011 (1st Dist. 1997), on which Owens had

relied, permits a coercion defense to a charge of

armed robbery, it does not allow that defense to

a charge of murder. Deeming the legal position

hopeless, the public defender’s office informed

Owens that it would not seek discretionary review

in the Supreme Court of Illinois, though the

office explained that Owens could seek review pro

se (a step Owens did not take).

 Owens’s current position is one of cascading

ineffective assistance of counsel: he contends

that trial counsel was ineffective for making a

doomed coercion defense; that appellate counsel

was ineffective for not arguing that trial

counsel had been ineffective (attempting,

instead, to vindicate trial counsel’s strategy by

relying on Serrano); and that the public defender

was ineffective for failing to seek discretionary

review by the state’s highest court on the ground

that both trial and appellate counsel had been
ineffective. The first variation is weak: Owens

does not tell us what better defense was

available, given his own statements admitting

complicity. The second can be no stronger than

the first and seems weaker, for reliance on

Serrano appears to be an effort to make the best

of a bad situation. The third variation is

frivolous, for there is no constitutional right

to any assistance of counsel in seeking

discretionary, third-tier review, Ross v.

Moffitt, 417 U.S. 600 (1974), and shortcomings of

counsel at that stage therefore cannot violate

the sixth amendment. Wainwright v. Torna, 455

U.S. 586 (1982). But the third variation sets up

Owens’s contention that his federal petition is

timely. He says that he did not realize in June

1997 that his appointed lawyer was leaving him to

his own devices, and that he did not appreciate

until March 1998 that no request for

discretionary review had been filed. Then, Owens

contends, he spent a further nine months

investigating what he could do about his

situation, finally concluding in December 1998

that he could seek collateral relief on the

ground of ineffective assistance. According to

Owens sometime in December 1998 was "the date on

which the factual predicate of the claim or

claims presented could have been discovered

through the exercise of due diligence",

sec.2244(d)(1)(D), and thus only then that the

year in which to seek federal review commenced.

 Owens’s approach disregards the language of the

statute. He proposes that the year to file a

federal petition begins when a prisoner actually

understands what legal theories are available.

That is not what sec.2244(d)(1) says. First, the

time commences when the factual predicate "could

have been discovered through the exercise of due

diligence", not when it was actually discovered

by a given prisoner. Second, the trigger in

sec.2244(d)(1)(D) is (actual or imputed)

discovery of the claim’s "factual predicate", not

recognition of the facts’ legal significance.

Most federal statutes of limitations are injurybased. Unlike some state systems, which start the

time only when a party knows (or should

recognize) that a legal wrong has been done,

federal statutes use objective indicators as

triggers. See United States v. Kubrick, 444 U.S.

111 (1979); Fujisawa Pharmaceutical Co. v.

Kapoor, 115 F.3d 1332 (7th Cir. 1997); Goodhand

v. United States, 40 F.3d 209 (7th Cir. 1994);

Tregenza v. Great American Communications Co., 12

F.3d 717 (7th Cir. 1993). Section 2244(d)(1)(D)

follows the norm for a federal statute of

limitations. Time begins when the prisoner knows

(or through diligence could discover) the

important facts, not when the prisoner recognizes

their legal significance. If sec.2244(d)(1) used
a subjective rather than an objective standard,

then there would be no effective time limit, as

Owens’s case illustrates. Like most members of

street gangs, Owens is young, has a limited

education, and knows little about the law. If

these considerations delay the period of

limitations until the prisoner has spent a few

years in the institution’s law library, however,

then sec.2244(d)(1) might as well not exist; few

prisoners are lawyers.

 Affirmance of Owens’s conviction in June 1997

starts the time under sec.2244(d)(1)(A). Section

2244(d)(1)(D) gives defendants the benefit of a

later start if vital facts could not have been

known by the date the appellate process ended.

Yet the principal fact setting the stage for the

current ineffective-assistance claim--that

Owens’s trial counsel attempted to present a

coercion defense--was known at trial. Likewise

Owens knew that the attempt was unsuccessful,

because the trial judge declined to instruct the

jury that coercion was a defense. If Owens had a

better defense, he knew that too (though he may

not have understood the legal utility of facts

that were not presented at trial). With respect

to the claim of ineffective assistance on appeal,

again the principal fact--that appellate counsel

pitched his argument on Serrano rather than

attacking the work of trial counsel--was readily

available to Owens before the appellate decision.

All he had to do was read the brief filed on his

behalf. So for Owens the time specified by

sec.2244(d)(1)(D) ends no later than that

specified by sec.2244(d)(1)(A). Counsel’s failure

to seek discretionary review in the state’s

supreme court is legally irrelevant given Moffitt

and Torna, but at all events the facts underlying

this claim also could have been discovered by

August 4, 1997 (the last date for a petition, see

Ill. Sup. Ct. R. 315(b)); the lack of a petition

was a matter of public record, which reasonable

diligence could have unearthed. Owens almost

certainly had actual knowledge; after all, the

public defender’s office sent him a letter

revealing that it would not file a petition, and

if he didn’t understand the letter all Owens had

to do was ask his appellate lawyer what it meant.

Thus the very latest starting date was August 4,

1997, and the statutory year expired long before

Owens filed his federal petition.

 Recharacterizing Owens’s argument as a request

for "equitable tolling" adds nothing;

sec.2244(d)(1)(D) is itself a kind of tolling

rule, see Taliani v. Chrans, 189 F.3d 597, 598

(7th Cir. 1999), and it would be inappropriate

for the judiciary to add time on a theory that

would amount to little more than disagreement

with the way Congress wrote sec.2244(d). Tolling
may be available when some impediment of a

variety not covered in sec.2244(d)(1) prevents

the filing of a federal collateral attack, see

Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.

2000), but Owens does not identify any such

impediment.

 Owens believes that he can avoid sec.2244(d)(1)

by recharacterizing his petition as a request for

habeas corpus under 28 U.S.C. sec.2241 or coram

nobis under the All-Writs Act, 28 U.S.C.

sec.1651(a). Not so. Section 2244(d)(1) applies

to every "application for a writ of habeas corpus

by a person in custody pursuant to the judgment

of a State court." It does not distinguish

between applications under sec.2241 and those

under sec.2254. Anyway, as the Supreme Court

observed in Felker v. Turpin, 518 U.S. 651, 662

(1996), and we reiterated in Walker v. O’Brien,

216 F.3d 626, 633 (7th Cir. 2000), every

collateral attack by a state prisoner on a final

judgment of conviction necessarily depends on

sec.2254. It is not possible to escape its

limitations by citing some other statute. The

All-Writs Act has even less to offer Owens than

does sec.2241, because writs in the nature of

coram nobis are limited to former prisoners who

seek to escape the collateral civil consequences

of wrongful conviction. United States v. Morgan,

346 U.S. 502 (1954); United States v. Bush, 888

F.2d 1145, 1147 (7th Cir. 1989). Persons still in

custody must look to sec.2254 or sec.2255 for

relief; they cannot use sec.1651(a) to escape

statutory restrictions on those remedies.

Carlisle v. United States, 517 U.S. 416, 428-29

(1996); Pennsylvania Bureau of Correction v.

United States Marshals Service, 474 U.S. 34, 43

(1985).

Affirmed