Terrance Bernard Davis v. Thomas G. Borgen

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2354
T ERRANCE B ERNARD D AVIS ,
Petitioner-Appellant,
v.
T HOMAS G. B ORGEN ,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03-C-187—J.P. Stadtmueller, Judge.
____________
S UBMITTED N OVEMBER 7, 2003—D ECIDED N OVEMBER 20, 2003
____________
Before B AUER , E ASTERBROOK , and E VANS , Circuit Judges.
E ASTERBROOK , Circuit Judge. After denying Terrance
Davis’s petition for collateral relief on the ground that it
had been filed more than four years after the statutory
limit, the district judge issued a certificate of appealability.
The state has asked us to vacate that certificate; Davis
replies that the state’s request comes too late.
We have said on several occasions that the rules govern-
ing certificates of appealability are principally designed to
save time for the litigants and judges, which implies that
once briefs have been filed there is little point in revisiting
the question whether a certificate should have been issued.

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2 No. 03-2354
See Brooks v. Walls, 279 F.3d 518, rehearing denied, 301
F.3d 839 (7th Cir. 2002); Ramunno v. United States, 264
F.3d 723 (7th Cir. 2001). By then the parties have expended
their efforts. From the court of appeals’ perspective,
determining whether the district judge should have issued
a certificate of appealability may require a review similar
to a decision on the merits. Because certificates properly
issue in many cases in which the prisoner will fail on full
merits review, see Miller-El v. Cockrell, 537 U.S. 322
(2003), a request to vacate a certificate has the potential to
increase the time judges must devote to the appeal: first a
motions panel will apply the standard of 28 U.S.C. §2253(c)
to the request, and then, if that motion is denied, a merits
panel must give plenary review to the appeal. Only when
the motion to vacate is made early enough to produce
savings for the litigants—and even then only when issuance
of the certificate was an obvious blunder, so that the court
of appeals need not traverse the same ground twice, see
Buie v. McAdory, 322 F.3d 980 (7th Cir. 2003)—does it
make sense to entertain a motion to vacate a certificate.
None of this implies, however, that there is a deadline for
submitting a motion to vacate the certificate. At least one
court of appeals has established such an outer limit by rule.
See 9th Cir. R. 22-1(c) (35 days from notice of appeal). This
circuit has not—not yet, anyway—created a fixed boundary
by rule, and it would be inappropriate to do so through
adjudication. Requests to vacate therefore are committed to
the discretion of the motions panel, which may balance the
potential for saving lawyers’ time against the risk of
increasing the consumption of judicial time. In this proceed-
ing, the state acted before filing its brief—indeed, before
Davis’s brief was due, though he filed two weeks early.
Vacating the certificate therefore could save some time for
counsel, and without creating any risk of duplicate judicial
work, for this certificate is transparently defective.

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No. 03-2354 3
Section 2253(c)(2) provides that a “certificate of appeal-
ability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.”
Section 2253(c)(3) adds that “[t]he certificate of appeal-
ability . . . shall indicate which specific issue or issues
satisfy the showing required by paragraph (2).” The cer-
tificate issued in this case satisfies neither of these require-
ments. The district court’s order suggests that the judge
thought it appropriate to issue a certificate permitting
appeal of a statutory issue whenever the prisoner makes
any constitutional argument—whether or not either the
constitutional or the statutory argument is substantial. The
judge wrote:
The issue Davis would like to raise on appeal is the
violation of his Sixth and Fourteenth Amendment
rights. He does not expressly seek to challenge
whether his petition was timely within the meaning
of 26 U.S.C. §2244(d)(1)(A). This creates somewhat
of a problem because if Davis does not challenge the
court’s determination that his petition was un-
timely, he has all but conceded that he is not
entitled to habeas relief. The court will liberally
construe Davis’ appeal to mean he challenges the
underlying basis for his dismissal as well as the
merits of his constitutional claims. By doing so, the
court is able to issue a certificate of appealability
concerning the procedural dismissal of his petition
and the violation of his Sixth and Fourteenth
Amendment rights.
The judge failed to specify any issue for appeal. Davis
proceeded to file a brief making a mélange of contentions
(some under the federal Constitution but most under
Wisconsin law) without mentioning the reason he lost in the
district court: that his petition had been filed more than
four years out of time. This vividly illustrates why it is vital
for district judges to comply with §2253(c)(3). Otherwise the

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4 No. 03-2354
appellate briefs may not focus on the substantial federal
issues that justify the appeal and may disregard subjects
that are vital to the appeal’s proper resolution.
To recap the statutory requirements: (1) A certificate of
appealability may be issued only if the prisoner has at least
one substantial constitutional question for appeal. 28 U.S.C.
§2253(c)(2). (2) The certificate must identify each substan-
tial constitutional question. 28 U.S.C. §2253(c)(3); Beyer v.
Litscher, 306 F.3d 504 (7th Cir. 2002). (3) If there is a
substantial constitutional issue, and an antecedent
non-constitutional issue independently is substantial, then
the certificate may include that issue as well. See Slack
v. McDaniel, 529 U.S. 473, 484 (2000); Owens v. Boyd,
235 F.3d 356 (7th Cir. 2000). (4) Any substantial non-
constitutional issue must be identified specifically in the
certificate. 28 U.S.C. §2253(c)(3). (5) If success on a non-
constitutional issue is essential (compliance with the
statute of limitations is a good example), and there is no
substantial argument that the district judge erred in re-
solving the non-constitutional question, then no certificate
of appealability should issue even if the constitutional
question standing alone would have justified an appeal. See
Anderson v. Litscher, 281 F.3d 672 (7th Cir. 2002).
The certificate issued here does not satisfy these require-
ments. The district judge did not find that any of Davis’s
constitutional arguments is substantial. The certificate does
not specify any constitutional issue to be resolved in this
court. The judge did not find that the statute of limitations
issue is independently substantial, nor does the certificate
list timeliness as an issue for appeal. Finally, because there
is no substantial argument (no argument, period) that
Davis’s petition is timely, it would be inappropriate to issue
a certificate even if one or more constitutional contentions
had been substantial, for it is pointless to brief the merits
when the statute of limitations halts the proceedings at the
threshold.

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No. 03-2354 5
The certificate of appealability is vacated, and the appeal
is dismissed.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-20-03

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