West, Rufus v. Schneiter, Richard ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4359
RUFUS WEST,
Petitioner-Appellant,
v.
RICHARD SCHNEITER, Warden,
Wisconsin Secure Program Facility,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05-C-1085—J.P. Stadtmueller, Judge.
____________
SUBMITTED MARCH 1, 2007—DECIDED MAY 4, 2007
____________
Before EASTERBROOK, Chief Judge, and POSNER and
ROVNER, Circuit Judges.
EASTERBROOK, Chief Judge. Does a prisoner who wants
to appeal from the denial of a post-judgment motion in a
collateral proceeding need a certificate of appealability
under 28 U.S.C. §2253(c)? We give an affirmative answer,
conclude that this petitioner is not entitled to a certifi-
cate, and dismiss the appeal.
Rufus West applied for a writ of habeas corpus under
28 U.S.C. §2254 and lost on the ground that his applica-
tion was untimely. After the Supreme Court held in
Gonzalez v. Crosby, 545 U.S. 524 (2005), that a post-
2 No. 06-4359
judgment motion in a federal collateral proceeding is
treated as a “second or successive” collateral attack, for
the purpose of 28 U.S.C. §2244(b)(1) and §2255 ¶8, only
if it presents a distinct “claim” for release, West filed a
motion under Fed. R. Civ. P. 60(b)(6) for relief from
judgment. He argued that the district judge had been
mistaken to think the application untimely. That’s the
sort of argument that under Gonzalez is not a new claim
for release and thus does not inaugurate a new collateral
attack. The district judge denied this motion, and West
appealed.
West did not, however, ask this court for a certificate of
appealability. He may believe that a certificate is required
only when the petitioner contests the district judge’s
substantive decision and not when the appellate issue
concerns a procedural ruling. That is not, however, what
the statute says. Section 2253(c)(1)(A) provides that,
“[u]nless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of
appeals from . . . the final order in a habeas corpus
proceeding in which the detention complained of arises out
of process issued by a State court”. An order rejecting a
Rule 60(b) motion is a “final order”—that’s why it is
appealable. And this is an order “in a habeas corpus
proceeding in which the detention complained of arises
out of process issued by a State court”.
The Court remarked in Gonzalez, 545 U.S. at 535 & n.7,
that “[m]any Courts of Appeals have construed 28 U.S.C.
§2253 to [require] a habeas petitioner to obtain a COA
[certificate of appealability] as a prerequisite to appealing
the denial of a Rule 60(b) motion”. This circuit has never
addressed that question explicitly; we now join the other
circuits that have considered this issue and hold that
§2253(c)(1) requires a certificate of appealability for any
appeal in a proceeding under §2255 or where “the deten-
tion complained of arises out of process issued by a State
court”.
No. 06-4359 3
A notice of appeal acts as a request for a certificate
whether or not the prisoner files a separate application.
Fed. R. App. P. 22(b)(2) (“If no express request for a
certificate is filed, the notice of appeal constitutes a
request addressed to the judges of the court of appeals.”).
But a petitioner who relies on his notice of appeal is hard
put to meet the statutory standard, for a certificate of
appealability may issue only when “the applicant has made
a substantial showing of the denial of a constitutional
right.” 28 U.S.C. §2253(c)(2). A notice of appeal does not
give reasons, and a silent document rarely constitutes a
“substantial showing” of anything. What’s more, questions
of statutory interpretation, such as whether the petition
was timely, do not qualify for a certificate, because they do
not concern the Constitution. See, e.g., Ramunno v. United
States, 264 F.3d 723 (7th Cir. 2001); Davis v. Borgen, 349
F.3d 1027 (7th Cir. 2003). When both a substantial
constitutional question and a substantial procedural
question are present, a certificate of appealability may
comprise both issues. See Slack v. McDaniel, 529 U.S. 473,
483-85 (2000). But it will be the rare case in which a court
of appeals espies substantial constitutional and statutory
questions that the petitioner has not thought it worth-
while to point out.
West has not tried to identify any substantial constitu-
tional question material to this appeal. Even if there
were such a question, a certificate could not issue because
the antecedent statutory questions about the period of
limitations and the proper use of Rule 60(b) are not
substantial. Gonzalez stressed that Rule 60(b)(6) may not
be used to reopen an adverse decision unless extraor-
dinary circumstances justify that step. 545 U.S. at 536-38.
West maintains that the statute of limitations does not
apply to anyone who claims to be actually innocent. That’s
not true, see Escamilla v. Jungwirth, 426 F.3d 868 (7th
Cir. 2005), and, more to the point, is an argument that
4 No. 06-4359
West could have made by taking an appeal from the
district judge’s initial order denying his petition. Litigants
who want to test the correctness of a district court’s
decision must appeal immediately. No extraordinary post-
judgment event justifies reopening this decision under
Rule 60(b).
We decline to issue a certificate of appealability. The
appeal is dismissed.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-4-07