Buie, Joel v. McAdory, Eugene

• Court: Court of Appeals for the Seventh Circuit
• Decided: March 12, 2003
• Docket: 02-3565
• Status: Published

Opinion

In the United States Court of Appeals For the Seventh Circuit ____________

No. 02-3565 JOEL BUIE, Petitioner-Appellant, v.

EUGENE MCADORY, Respondent-Appellee. ____________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 1034—David H. Coar, Judge. ____________ On Motion to Vacate Certificate of Appealability ____________ SUBMITTED NOVEMBER 1, 2002—DECIDED MARCH 12, 2003 ____________

Before POSNER, RIPPLE, and KANNE, Circuit Judges. POSNER, Circuit Judge. Prisoners are required by 28 U.S.C. § 2253(c) to obtain a certificate of appealability from either a district court or a court of appeals as a prerequi- site to appealing the denial of their habeas corpus peti- tions (state prisoners) or of their motions to vacate their conviction or sentence under 28 U.S.C. § 2255 (federal prisoners). The certificate must identify at least one sub- stantial constitutional question. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Illinois prisoner 2 No. 02-3565

Joel Buie obtained a certificate of appealability from the district court that probably does not comply with this requirement because the constitutional issue—whether his due process rights were violated by a forensic expert’s testimony that a strand of hair found at the scene of the crime for which Buie was convicted was his—appears to be an issue merely of Illinois evidence law. On this basis the respondent asks us to vacate the certificate of ap- pealability. The request raises the question, on which the statute is silent, whether and in what circumstances such a certificate once issued can be vacated. Young v. United States, 124 F.3d 794, 799 (7th Cir. 1997), rejected the argument that a certificate of appealability that complies with § 2253(c), that is, that genuinely presents a substantial constitutional question, is a jurisdictional re- quirement for an appeal. Our ground was pragmatic. The purpose of requiring a certificate of appealability is to conserve judicial resources by screening out clearly unmeri- torious appeals. But once the certificate has been issued, even if erroneously, and the appeal is briefed, there is nothing to be gained from revisiting the adequacy of the certificate. But the present appeal has not been briefed, and so it is less clear that we should decline to consid- er a motion to vacate the certificate. Young did not sug- gest that we lacked the power to grant such a motion. It held that the grant would be inappropriate in the circum- stances presented, without addressing the issue of power. Young’s holding, that a certificate which complies with the statute is not a jurisdictional prerequisite to an ap- peal, was followed by the Second Circuit in Soto v. United States, 185 F.3d 48, 51-52 (2d Cir. 1999); but in United States v. Cepero, 224 F.3d 256, 260-62 (3d Cir. 2000) (en banc), the Third Circuit rejected Young on the authority of Hohn v. United States, 524 U.S. 236, 241-46 (1998), where the No. 02-3565 3

Supreme Court had held that the denial of the certificate is the resolution of a “case”—as opposed to a mere admin- istrative function—over which the Court has statutory jurisdiction by virtue of 28 U.S.C. § 1254(1). At the other end of the spectrum, the Tenth Circuit has decided that it will never review already-issued certificates of appeal- ability. LaFevers v. Gibson, 182 F.3d 705, 710–11 (10th Cir. 1999). It analogized them to the old certificates of prob- able cause, as to which the Supreme Court had said that “once a district judge grants such a certificate, the court of appeals must . . . proceed to a disposition of the appeal in accord with its ordinary procedure.” Nowakowski v. Maroney, 386 U.S. 542, 543 (1967) (per curiam). We are not persuaded by either Cepero or LeFevers to abandon the intermediate approach of Young. Ramunno v. United States, 264 F.3d 723, 725 (7th Cir. 2001). We do not share the Third Circuit’s view that Hohn compels the conclusion that the issuance of a complying certificate of appealability is jurisdictional. That issuance is indeed a judicial act, but “judicial” is not a synonym for “jurisdic- tional.” And while certificates of probable cause and certificates of appealability are similar in some respects, they differ in the pertinent respect that a certificate of appealability must identify a particular constitutional issue. Herrera v. United States, 96 F.3d 1010, 1012 (7th Cir. 1996). Moreover, Nowakowski v. Maroney, the case relied upon by the Tenth Circuit in LeFevers, did not require full briefing on the merits; as made clear in Garrison v. Pat- terson, 391 U.S. 464, 466-67 (1968) (per curiam), courts were free to adopt summary procedures to dispose of nonmeritorious appeals in habeas corpus and section 2255 cases. See also Barefoot v. Estelle, 463 U.S. 880, 888-89 (1983). And at least one court had quashed improperly granted certificates of probable cause, see Kramer v. 4 No. 02-3565

Kemna, 21 F.3d 305, 309 (8th Cir. 1994)—the relief sought by the respondent in this case. Since the decision in Young, moreover, a number of cases in this and other circuits have held or assumed that courts have the power to vacate an improperly granted certificate of appealability in appropriate cases, namely cases in which the certificate identifies only a statutory or other clearly nonconstitutional issue (or no issue at all): in other words, extreme cases. See, e.g., Beyer v. Litscher, 306 F.3d 504, 505-06 (7th Cir. 2002); Ramunno v. United States, supra, 264 F.3d at 725; Owens v. Boyd, 235 F.3d 356, 358 (7th Cir. 2001); United States v. Marcello, 212 F.3d 1005, 1007-08 (7th Cir. 2000); Khaimov v. Crist, 297 F.3d 783, 785 (8th Cir. 2002); James v. Giles, 221 F.3d 1074, 1076-77 (9th Cir. 2000). The opposing extreme is the situation, noted in Young itself, in which the appeal has been fully briefed by the time the respondent gets around to moving to vacate the certificate of appealability. In the first type of case, judicial resources are conserved by granting the motion, and in the second by denying it. But there is a third type of case, illustrated by this case, in which briefing has not yet begun but the certificate has identified a constitutional issue of dubious substantiality. It is probable that Buie’s appeal presents only and therefore futilely an issue of Illinois evidence law, but it is not certain; state evidentiary rulings can violate a defendant’s federal constitutional rights. E.g., Rock v. Arkansas, 483 U.S. 44 (1998); Webb v. Texas, 409 U.S. 95 (1972) (per curiam). In these circumstances, it will conserve ju- dicial resources in the long run to allow the case to be briefed rather than to worry the issue of substantiality. The motion to vacate the certificate of appealability is therefore DENIED. No. 02-3565 5

A true Copy: Teste:

_____________________________ Clerk of the United States Court of Appeals for the Seventh Circuit

USCA-02-C-0072—3-12-03