Ramunno, Jr. v. U.S.A.
| Citation | 264 F.3d 723 |
| Decision Date | 04 September 2001 |
| Docket Number | No. 01-1731,01-1731 |
| Parties | (7th Cir. 2001) John A. Ramunno, Jr., Petitioner-Appellant, v. United States of America, Respondent-Appellee |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Appeal from the United States District Court for the Southern District of Illinois. No. 00-CV-4119-JPG (96-CR-40034-JPG)-- J. Phil Gilbert, Judge.
Before Easterbrook, Manion, and Diane P. Wood, Circuit Judges.
The district court dismissed as untimely John Ramunno's collateral attack under 28 U.S.C. sec.2255. To obtain this court's review, Ramunno needs a certificate of appealability, 28 U.S.C. sec.2253(c)(1)(B), which paragraph (2) says "may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." Paragraph (3) of sec.2253(c) adds that a "certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2)." The district court issued a certificate of appealability specifying one issue: "the date upon which [Ramunno's] conviction became final for purposes of the one-year statute of limitations." This may be a disputed issue of fact or an issue of statutory interpretation, but it does not concern "the denial of a constitutional right." Disputes about a petition's timeliness do not support an appeal unless a substantial constitutional issue lurks in the background, and the statutory question is independently substantial. See Slack v. McDaniel, 529 U.S. 473, 483-85 (2000); Garrott v. United States, 238 F.3d 903 (7th Cir. 2001); Owens v. Boyd, 235 F.3d 356 (7th Cir. 2000); United States v. Marcello, 212 F.3d 1005 (7th Cir. 2000).
Appellate courts have disagreed about whether a certificate of appealability conforming to sec.2253(c)(2) and (3) is a jurisdictional requirement. Some hold that it is. See, e.g., United States v. Cepero, 224 F.3d 256 (3d Cir. 2000). This circuit is among those holding that it is not--that although a certificate of appealability is indispensable, compliance with the substantial- constitutional-issue requirement of paragraph (c)(2) is not. See, e.g., Owens, 235 F.3d at 358; Marcello, 212 F.3d at 1008; Romandine v. United States, 206 F.3d 731, 734 (7th Cir. 2000); Young v. United States, 124 F.3d 794, 798-99 (7th Cir. 1997). But as we remarked in Young, reiterated in Marcello, and demonstrated in Buggs v. United States, 153 F.3d 439, 443 (7th Cir. 1998), the court is prepared to enforce sec.2253(c) by dismissing an appeal if the appellee brings the defect to our attention early in the process, as the United States has done before the close of briefing by filing a motion to vacate the certificate. Vacating a certificate of appealability is an unusual step, Marcello emphasizes, but the possibility of review is essential if the statutory limits are to be implemented. Otherwise district judges have the authority to issue certificates of appealability for any reason at all, and as open-ended as they please.
Once an appeal has been fully briefed some of the hoped-for savings from concentrating on substantial constitutional issues have been lost. Marcello concludes that the court has discretion to retain the appeal even if the request precedes the completion of briefing, see 212 F.3d at 1007-08; the more important to other cases the non- constitutional issue may be, the more likely is this court to complete the process of briefing and decision. But when the certificate of appealability presents nothing but a simple (or case- specific) statutory issue, dismissal should be the norm--unless the defendant can establish that some other issue justifies appellate review, for it is the defendant's prerogative to seek an extension of the certificate of appealability to other issues that meet the statutory criteria. See Sylvester v. Hanks, 140 F.3d 713 (7th Cir. 1998). If the case presents a substantial constitutional question, then an independently substantial statutory issue may come along for the ride. This is one holding of Slack.
The United States' motion to vacate the certificate of appealability observes that the only issue mentioned by the district court is statutory--and it appears to concern only the application of established rules to particular events. As for the claims made in Ramunno's motion under ...
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