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Terrance Bernard Davis v. Thomas G. Borgen
Citations: 349 F.3d 1027; 2003 U.S. App. LEXIS 23666; 2003 WL 22724702Docket: 03-2354
Court: Court of Appeals for the Seventh Circuit; November 20, 2003; Federal Appellate Court
Terrance Davis's petition for collateral relief was denied by the district court due to being filed over four years past the statutory limit. However, the district judge issued a certificate of appealability, which the state requested to vacate, arguing it was improperly issued. The court observed that requests to vacate certificates are typically not revisited once briefs are filed, as this can prolong the appeal process unnecessarily. The court noted that a timely request could save effort for counsel without increasing judicial workload, particularly in cases where the certificate is clearly defective. The court emphasized that under 28 U.S.C. § 2253(c)(2), a certificate of appealability can only be granted if the applicant shows a substantial denial of a constitutional right. Further, § 2253(c)(3) requires the certificate to specify which issues meet this standard. In this case, the issued certificate failed to meet both criteria, as the district judge had mistakenly allowed an appeal on a statutory issue based merely on the presence of a constitutional argument, regardless of its substance. Davis seeks to appeal based on alleged violations of his Sixth and Fourteenth Amendment rights but does not contest the timeliness of his petition under 28 U.S.C. 2244(d)(1)(A). This omission complicates his position, as failing to challenge the court's ruling on the untimeliness of his petition effectively concedes that he is not entitled to habeas relief. The court will interpret his appeal as a challenge to both the dismissal and the merits of his constitutional claims, allowing for the issuance of a certificate of appealability regarding the procedural dismissal and constitutional violations cited. However, the judge did not specify any issues for appeal, leading Davis to file a brief with various arguments, predominantly based on Wisconsin law, while neglecting the timeliness issue that led to his loss in district court. This situation underscores the importance of district judges adhering to 28 U.S.C. 2253(c)(3) to ensure appellate briefs address substantial federal issues. The statutory requirements for issuing a certificate of appealability include: (1) the existence of at least one substantial constitutional question (28 U.S.C. 2253(c)(2)); (2) the requirement that the certificate identifies each substantial constitutional issue (28 U.S.C. 2253(c)(3)); (3) the possibility of including substantial non-constitutional issues if they are independently substantial (Slack v. McDaniel); (4) any substantial non-constitutional issue must be specifically identified (28 U.S.C. 2253(c)(3)); and (5) if success on a non-constitutional issue is essential and there is no substantial argument regarding the district judge's decision on that issue, a certificate should not be issued (Anderson v. Litscher). In this instance, the certificate does not meet these criteria. The district judge did not find Davis's constitutional arguments substantial, nor does the certificate specify any constitutional issues for resolution. Additionally, the statute of limitations issue was not found to be independently substantial, and there is no argument that Davis's petition is timely. Consequently, even if some constitutional claims were substantial, issuing a certificate is unwarranted since the statute of limitations prevents further proceedings. The certificate of appealability is vacated, and the appeal is dismissed.