                               In the
 United States Court of Appeals
                For the Seventh Circuit
                           ____________

No. 02-3565
JOEL BUIE,
                                                  Petitioner-Appellant,
                                   v.

EUGENE MCADORY,
                                                 Respondent-Appellee.
                           ____________
              Appeal from the United States District Court
         for the Northern District of Illinois, Eastern Division.
                 No. 97 C 1034—David H. Coar, Judge.
                           ____________
       On Motion to Vacate Certificate of Appealability
                           ____________
   SUBMITTED NOVEMBER 1, 2002—DECIDED MARCH 12, 2003
                           ____________


  Before POSNER, RIPPLE, and KANNE, Circuit Judges.
  POSNER, Circuit Judge. Prisoners are required by 28
U.S.C. § 2253(c) to obtain a certificate of appealability from
either a district court or a court of appeals as a prerequi-
site to appealing the denial of their habeas corpus peti-
tions (state prisoners) or of their motions to vacate their
conviction or sentence under 28 U.S.C. § 2255 (federal
prisoners). The certificate must identify at least one sub-
stantial constitutional question. 28 U.S.C. § 2253(c)(2); Slack
v. McDaniel, 529 U.S. 473, 483-84 (2000). Illinois prisoner
2                                                 No. 02-3565

Joel Buie obtained a certificate of appealability from the
district court that probably does not comply with this
requirement because the constitutional issue—whether
his due process rights were violated by a forensic expert’s
testimony that a strand of hair found at the scene of the
crime for which Buie was convicted was his—appears to
be an issue merely of Illinois evidence law. On this basis
the respondent asks us to vacate the certificate of ap-
pealability. The request raises the question, on which
the statute is silent, whether and in what circumstances
such a certificate once issued can be vacated.
  Young v. United States, 124 F.3d 794, 799 (7th Cir. 1997),
rejected the argument that a certificate of appealability that
complies with § 2253(c), that is, that genuinely presents
a substantial constitutional question, is a jurisdictional re-
quirement for an appeal. Our ground was pragmatic. The
purpose of requiring a certificate of appealability is to
conserve judicial resources by screening out clearly unmeri-
torious appeals. But once the certificate has been issued,
even if erroneously, and the appeal is briefed, there is
nothing to be gained from revisiting the adequacy of the
certificate. But the present appeal has not been briefed,
and so it is less clear that we should decline to consid-
er a motion to vacate the certificate. Young did not sug-
gest that we lacked the power to grant such a motion. It
held that the grant would be inappropriate in the circum-
stances presented, without addressing the issue of power.
  Young’s holding, that a certificate which complies with
the statute is not a jurisdictional prerequisite to an ap-
peal, was followed by the Second Circuit in Soto v. United
States, 185 F.3d 48, 51-52 (2d Cir. 1999); but in United States
v. Cepero, 224 F.3d 256, 260-62 (3d Cir. 2000) (en banc),
the Third Circuit rejected Young on the authority of Hohn
v. United States, 524 U.S. 236, 241-46 (1998), where the
No. 02-3565                                                 3

Supreme Court had held that the denial of the certificate
is the resolution of a “case”—as opposed to a mere admin-
istrative function—over which the Court has statutory
jurisdiction by virtue of 28 U.S.C. § 1254(1). At the other
end of the spectrum, the Tenth Circuit has decided that
it will never review already-issued certificates of appeal-
ability. LaFevers v. Gibson, 182 F.3d 705, 710–11 (10th Cir.
1999). It analogized them to the old certificates of prob-
able cause, as to which the Supreme Court had said
that “once a district judge grants such a certificate, the
court of appeals must . . . proceed to a disposition of the
appeal in accord with its ordinary procedure.” Nowakowski
v. Maroney, 386 U.S. 542, 543 (1967) (per curiam).
  We are not persuaded by either Cepero or LeFevers to
abandon the intermediate approach of Young. Ramunno
v. United States, 264 F.3d 723, 725 (7th Cir. 2001). We do
not share the Third Circuit’s view that Hohn compels the
conclusion that the issuance of a complying certificate of
appealability is jurisdictional. That issuance is indeed a
judicial act, but “judicial” is not a synonym for “jurisdic-
tional.” And while certificates of probable cause and
certificates of appealability are similar in some respects,
they differ in the pertinent respect that a certificate of
appealability must identify a particular constitutional
issue. Herrera v. United States, 96 F.3d 1010, 1012 (7th Cir.
1996). Moreover, Nowakowski v. Maroney, the case relied
upon by the Tenth Circuit in LeFevers, did not require full
briefing on the merits; as made clear in Garrison v. Pat-
terson, 391 U.S. 464, 466-67 (1968) (per curiam), courts
were free to adopt summary procedures to dispose of
nonmeritorious appeals in habeas corpus and section
2255 cases. See also Barefoot v. Estelle, 463 U.S. 880, 888-89
(1983). And at least one court had quashed improperly
granted certificates of probable cause, see Kramer v.
4                                                 No. 02-3565

Kemna, 21 F.3d 305, 309 (8th Cir. 1994)—the relief sought by
the respondent in this case.
  Since the decision in Young, moreover, a number of
cases in this and other circuits have held or assumed that
courts have the power to vacate an improperly granted
certificate of appealability in appropriate cases, namely
cases in which the certificate identifies only a statutory or
other clearly nonconstitutional issue (or no issue at all): in
other words, extreme cases. See, e.g., Beyer v. Litscher,
306 F.3d 504, 505-06 (7th Cir. 2002); Ramunno v. United States,
supra, 264 F.3d at 725; Owens v. Boyd, 235 F.3d 356, 358 (7th
Cir. 2001); United States v. Marcello, 212 F.3d 1005, 1007-08
(7th Cir. 2000); Khaimov v. Crist, 297 F.3d 783, 785 (8th Cir.
2002); James v. Giles, 221 F.3d 1074, 1076-77 (9th Cir. 2000).
The opposing extreme is the situation, noted in Young itself,
in which the appeal has been fully briefed by the time the
respondent gets around to moving to vacate the certificate
of appealability. In the first type of case, judicial resources
are conserved by granting the motion, and in the second by
denying it. But there is a third type of case, illustrated by
this case, in which briefing has not yet begun but the
certificate has identified a constitutional issue of dubious
substantiality. It is probable that Buie’s appeal presents only
and therefore futilely an issue of Illinois evidence law, but
it is not certain; state evidentiary rulings can violate a
defendant’s federal constitutional rights. E.g., Rock v.
Arkansas, 483 U.S. 44 (1998); Webb v. Texas, 409 U.S. 95 (1972)
(per curiam). In these circumstances, it will conserve ju-
dicial resources in the long run to allow the case to be
briefed rather than to worry the issue of substantiality. The
motion to vacate the certificate of appealability is therefore
                                                      DENIED.
No. 02-3565                                             5

A true Copy:
       Teste:

                       _____________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                USCA-02-C-0072—3-12-03
