By: dmc-admin//September 10, 2001//
“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.”
Dismissed.
Appeal from the United States District Court for the Southern District of Illinois, Gilbert, J., Easterbrook, J.