Young, Tyrone O. v. United States , 523 F.3d 717 ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-4015
TYRONE O. YOUNG,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 06–C–1328—Rudolph T. Randa, Chief Judge.
____________
SUBMITTED APRIL 2, 2008—DECIDED APRIL 15, 2008
____________
Before EASTERBROOK, Chief Judge, and POSNER and
ROVNER, Circuit Judges.
PER CURIAM. The petitioner has appealed from the
denial of his motion under 28 U.S.C. § 2255 to vacate his
sentence. The district court issued a certificate of appeal-
ability “regarding the timeliness of his motion.” The
court offered no other explanation for its action.
In acting as it did, the court appears to have overlooked
our opinion in Davis v. Borgen, 349 F.3d 1027 (7th Cir. 2003),
another case from the Eastern District of Wisconsin. There
we stated:
(1) A certificate of appealability may be issued only if
the prisoner has at least one substantial constitutional
2 No. 07-4015
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-constitu-
tional 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 non-consti-
tutional issue must be identified specifically in the
certificate. 28 U.S.C. § 2253(c)(3). (5) If success on a
non-constitutional 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).
Id. at 1029. We then pointed out that the certificate issued
by the district court did not satisfy these requirements.
It is the same here. The prisoner has no constitutional
question for appeal, substantial or otherwise; the only
question he presents is whether the district court abused its
discretion in finding that his section 2255 motion was
untimely. The certificate of appealability does not identify
a substantial, or any, constitutional question.
That moots the other three requirements.
The certificate of appealability is vacated and the appeal
dismissed.
USCA-02-C-0072—4-15-08