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John Lavin v. Daverednour

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SUBMITTED JANUARY 18, 2011

Before FLAUM, KANNE, and SYKES, Circuit Judges.

John Lavin is serving a 40-year sentence for attempted first-degree murder, aggravated battery, and aggravated battery of a senior citizen. The district court denied Lavin’s petition for a writ of habeas corpus, 28 U.S.C. § 2254, but certified three of his many claims for appeal: whether trial counsel rendered constitutionally adequate representation, whether Lavin’s sentence violates Apprendi v. New Jersey, 530 U.S. 466 (2000), and whether the state produced sufficient evidence of Lavin’s intent to commit attempted murder. We appointed counsel to represent Lavin on appeal, and counsel has filed a motion seeking guidance on the scope of his responsibilities to Lavin and to the court. Specifically, Lavin has asked counsel to brief claims that were not included in the certificate of appealability and that counsel believes do not satisfy the standard for certification. See 28 U.S.C. § 2253(c). And, although counsel does not explicitly say so, we assume that he believes one or more of the certified claims is frivolous. Because counsel’s quandary is not unusual, we publish our response.

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