In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-2354

TERRANCE BERNARD DAVIS,

Petitioner-Appellant,

v.

THOMAS G. BORGEN,

Respondent-Appellee.

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Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 03-C-187—J.P. Stadtmueller, Judge.

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SUBMITTED NOVEMBER 7, 2003—DECIDED NOVEMBER 20, 2003

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Before BAUER, EASTERBROOK, and EVANS, Circuit Judges.

EASTERBROOK, 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 governing 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.
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 proceeding, 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.
No. 03-2354 3

Section 2253(c)(2) provides that a “certificate of appealability 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 appealability . . . shall indicate which specific issue or issues

satisfy the showing required by paragraph (2).” The certificate issued in this case satisfies neither of these requirements. 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 untimely, 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
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 substantial 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 nonconstitutional issue must be identified specifically in the

certificate. 28 U.S.C. §2253(c)(3). (5) If success on a nonconstitutional 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 resolving 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 requirements. 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.
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