In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-4359

RUFUS WEST,

Petitioner-Appellant,

v.

RICHARD SCHNEITER, Warden,

Wisconsin Secure Program Facility,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 05-C-1085—J.P. Stadtmueller, Judge.

____________

SUBMITTED MARCH 1, 2007—DECIDED MAY 4, 2007

____________

Before EASTERBROOK, Chief Judge, and POSNER and

ROVNER, Circuit Judges.

EASTERBROOK, Chief Judge. Does a prisoner who wants

to appeal from the denial of a post-judgment motion in a

collateral proceeding need a certificate of appealability

under 28 U.S.C. §2253(c)? We give an affirmative answer,

conclude that this petitioner is not entitled to a certificate, and dismiss the appeal.

Rufus West applied for a writ of habeas corpus under

28 U.S.C. §2254 and lost on the ground that his application was untimely. After the Supreme Court held in

Gonzalez v. Crosby, 545 U.S. 524 (2005), that a post-
2 No. 06-4359

judgment motion in a federal collateral proceeding is

treated as a “second or successive” collateral attack, for

the purpose of 28 U.S.C. §2244(b)(1) and §2255 ¶8, only

if it presents a distinct “claim” for release, West filed a

motion under Fed. R. Civ. P. 60(b)(6) for relief from

judgment. He argued that the district judge had been

mistaken to think the application untimely. That’s the

sort of argument that under Gonzalez is not a new claim

for release and thus does not inaugurate a new collateral

attack. The district judge denied this motion, and West

appealed.

West did not, however, ask this court for a certificate of

appealability. He may believe that a certificate is required

only when the petitioner contests the district judge’s

substantive decision and not when the appellate issue

concerns a procedural ruling. That is not, however, what

the statute says. Section 2253(c)(1)(A) provides that,

“[u]nless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken to the court of

appeals from . . . the final order in a habeas corpus

proceeding in which the detention complained of arises out

of process issued by a State court”. An order rejecting a

Rule 60(b) motion is a “final order”—that’s why it is

appealable. And this is an order “in a habeas corpus

proceeding in which the detention complained of arises

out of process issued by a State court”.

The Court remarked in Gonzalez, 545 U.S. at 535 & n.7,

that “[m]any Courts of Appeals have construed 28 U.S.C.

§2253 to [require] a habeas petitioner to obtain a COA

[certificate of appealability] as a prerequisite to appealing

the denial of a Rule 60(b) motion”. This circuit has never

addressed that question explicitly; we now join the other

circuits that have considered this issue and hold that

§2253(c)(1) requires a certificate of appealability for any

appeal in a proceeding under §2255 or where “the detention complained of arises out of process issued by a State

court”.
No. 06-4359 3

A notice of appeal acts as a request for a certificate

whether or not the prisoner files a separate application.

Fed. R. App. P. 22(b)(2) (“If no express request for a

certificate is filed, the notice of appeal constitutes a

request addressed to the judges of the court of appeals.”).

But a petitioner who relies on his notice of appeal is hard

put to meet the statutory standard, for a certificate of

appealability may issue only when “the applicant has made

a substantial showing of the denial of a constitutional

right.” 28 U.S.C. §2253(c)(2). A notice of appeal does not

give reasons, and a silent document rarely constitutes a

“substantial showing” of anything. What’s more, questions

of statutory interpretation, such as whether the petition

was timely, do not qualify for a certificate, because they do

not concern the Constitution. See, e.g., Ramunno v. United

States, 264 F.3d 723 (7th Cir. 2001); Davis v. Borgen, 349

F.3d 1027 (7th Cir. 2003). When both a substantial

constitutional question and a substantial procedural

question are present, a certificate of appealability may

comprise both issues. See Slack v. McDaniel, 529 U.S. 473,

483-85 (2000). But it will be the rare case in which a court

of appeals espies substantial constitutional and statutory

questions that the petitioner has not thought it worthwhile to point out.

West has not tried to identify any substantial constitutional question material to this appeal. Even if there

were such a question, a certificate could not issue because

the antecedent statutory questions about the period of

limitations and the proper use of Rule 60(b) are not

substantial. Gonzalez stressed that Rule 60(b)(6) may not

be used to reopen an adverse decision unless extraordinary circumstances justify that step. 545 U.S. at 536-38.

West maintains that the statute of limitations does not

apply to anyone who claims to be actually innocent. That’s

not true, see Escamilla v. Jungwirth, 426 F.3d 868 (7th

Cir. 2005), and, more to the point, is an argument that
4 No. 06-4359

West could have made by taking an appeal from the

district judge’s initial order denying his petition. Litigants

who want to test the correctness of a district court’s

decision must appeal immediately. No extraordinary postjudgment event justifies reopening this decision under

Rule 60(b).

We decline to issue a certificate of appealability. The

appeal is dismissed.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-4-07