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Federal Habeas Procedure – Appellate – Certificate of Appealability – Untimely 2254 Petition

Terrance Bernard Davis v. Borgen349 F.3d 1027 ( 7th Cir. 03-2354, 11/20/03)


Issue/Holding: A certificate of appealability of dismissal of a habeas petition filed four years after the deadline is vacated:

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.

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