Ramunno, John A. v. United States ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1731
John A. Ramunno, Jr.,
Petitioner-Appellant,
v.
United States of America,
Respondent-Appellee.
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.
Submitted August 17, 2001--Decided September 4, 2001
Before Easterbrook, Manion, and Diane P.
Wood, Circuit Judges.
Easterbrook, Circuit Judge. 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 sec.2255: Only one
of these rests on the Constitution.
Ramunno contends that his lawyer
furnished ineffective assistance by not
obtaining for his client additional
benefits under federal statutes and the
Sentencing Guidelines. See Glover v.
United States, 121 S. Ct. 696 (2001).
And, at least as the United States
describes that constitutional claim, it
does not appear to be substantial. But
the prosecutor is hardly going to display
Ramunno’s claim in its best light, so we
waited to see what Ramunno’s current
lawyer has to say. After taking 40 days
to file a response, counsel said nothing
about the Constitution. The United
States’ motion pointedly referred to
Slack, Owens, Garrott, and Marcello, as
well as sec.2253(c)(2) itself, so
Ramunno’s lawyer had to recognize that a
substantial constitutional issue is
essential if the appeal is to continue.
Nonetheless, all counsel’s response says
is that the timeliness question is
debatable, and that the appeal therefore
should continue.
We publish this opinion as a reminder,
both to district judges and to counsel. A
certificate of appealability never should
have been issued in this case--not, that
is, unless the underlying ineffective-
assistance claim is "substantial," and we
have no reason to suppose that the
district judge thought this. Once the
defective certificate was issued, and the
United States moved to vacate, counsel
for the petitioner should have made every
effort to identify an issue that does
satisfy sec.2253(c)(2). Perhaps counsel
did so and came up empty; but then one
wonders why counsel filed an appeal, for
if there is no substantial constitutional
issue a remand would do Ramunno no good.
Our own protocol when the appellee (state
or federal) moves to vacate a certificate
of appealability will be to invite a
response by counsel (or a prisoner
proceeding pro se), citing Slack and this
opinion. If that response does not draw
our attention to a substantial
constitutional issue, the certificate
will be vacated and the appeal dismissed.
If the response does contend that such an
issue exists, we will conduct the inquiry
and apply the standards articulated by
the Supreme Court in Slack. Because
Ramunno’s response does not contend that
there is a substantial constitutional
issue--and because the motion itself drew
Slack and sec. 2253(c)(2) to counsel’s
attention--we stop at the first step. The
certificate of appealability is vacated,
and the appeal is dismissed.