In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-4220

W ILLIAM E VANS,
                                                Petitioner-Appellant,
                                  v.

C IRCUIT C OURT OF C OOK C OUNTY, ILLINOIS,

                                                Respondent-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
               No. 08 C 3473—James B. Moran, Judge.



      S UBMITTED M AY 27, 2009—D ECIDED JUNE 23, 2009




   Before E ASTERBROOK, Chief Judge, and W ILLIAMS and
T INDER, Circuit Judges.
  E ASTERBROOK, Chief Judge. William Evans is awaiting
trial in state court on criminal charges. He believes that
constitutional errors in the state prosecution will prevent
a valid conviction, and he has filed a petition for a writ
of habeas corpus under 28 U.S.C. §2241. The district
court denied this petition because the state judiciary
can set any problem to rights.
2                                                 No. 08-4220

  The first question we must address is whether Evans
needs a certificate of appealability. “Unless 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”. 28 U.S.C. §2253(c)(1)(A). This is a
habeas corpus proceeding. Does “the detention com-
plained of [arise] out of process issued by a State court”?
Respondent (the state court, represented by the Attorney
General of Illinois) asks us to overrule Behr v. Ramsey,

(7th Cir. 2000), which it reads as giving
a negative answer.
  Behr was in custody after the Governor of Illinois issued
a warrant in response to Kentucky’s request for Behr’s
extradition. He filed a petition under §2241, and we
concluded that “no certificate of appealability is required
in proper §2241 cases like this 

. Illinois
reads “like this one” to mean “all proper §2241 cases”, but
Behr neither says nor means that. What makes a case “like”
Behr is that custody stems from process issued by the
executive rather than the judicial branch of a state. Only
when a “State court” has authorized the complained-of
detention does §2253(c)(1)(A) require a certificate of
appealability in a proceeding initiated by a state pris-
oner. That is why we held in Walker v. O’Brien, 

(7th Cir. 2000), that a certificate of appealability
is unnecessary when a state prisoner contends that a
prison disciplinary board, an entity within the state’s
executive branch, has improperly rescinded some of the
prisoner’s good-time credits. Several circuits have dis-
agreed with Walker, observing that revocation of good-time
No. 08-4220                                                 3

credits requires the prisoner to serve more of a sentence
imposed by a state court, and that “the detention com-
plained of” ultimately depends on the state judiciary’s
“process”. See Moffat v. Broyles, 

(7th Cir.
2002) (collecting cases). It is unnecessary to revisit that
subject; what matters is that Behr is securely on the
executive-process side of the statute’s line between
judicial and executive orders for detention, while Evans
is on the judicial side. His detention depends on an in-
dictment, on an information plus a judicial decision
following a preliminary hearing, or perhaps both;
Evans does not contend that his custody rests on the
prosecutor’s charging decision alone.
  Two other circuits that have considered the question
have concluded that a state prisoner being held after an
indictment or preliminary hearing, who seeks pretrial
release, needs a certificate of appealability in order to
appeal from a district court’s decision denying a petition
for a writ of habeas corpus. See Stringer v. Williams, 

, 261–62 (5th Cir. 1998); Wilson v. Belleque, 

, 821, 824–25 (9th Cir. 2009). We agree with
these decisions, which for the reason we have men-
tioned are consistent with Behr. (The one contrary
decision, Gonzalez v. Justices of Municipal Court, 

,
11–12 (1st Cir. 2004), was vacated on other grounds by
the Supreme Court, 

(2005), and thus
lacks precedential value. Gonzalez appears to reflect a
confusion between §2253(a), which deals with federal
prisoners and is limited to motions under §2255, and
§2253(c)(1)(A), which deals with state prisoners and
covers all sources of authority to issue writs of habeas
corpus.)
4                                              No. 08-4220

  A certificate of appealability may issue only if the
prisoner makes a substantial showing that his constitu-
tional rights have been violated. 28 U.S.C. §2253(c)(2).
Evans has not made such a showing. He complains, for
example, about the quality of his attorney’s assistance,
but whether counsel has lived up to the sixth amend-
ment’s requirements depends on the entire course of
performance, much of which lies ahead—and federal
relief also depends on prejudice, which cannot be shown
yet. See Strickland v. Washington, 

, 690–96
(1984). Evans believes that exculpatory evidence has
been suppressed, but the doctrine of Brady v. Maryland,

(1963), does not require pretrial turnover. It
is a disclosure rather than a discovery rule. See United
States v. Ruiz, 

(2002). Until a trial has been
held, it is not possible to be sure what will and will not
be disclosed or whether any non-disclosure is material.
In short, Evans fears that his rights will be violated, but
he lacks a substantial showing that they have been vio-
lated irremediably—and he certainly has not made a
substantial showing of a need for federal intervention
before all of his claims have been presented to the state
judiciary and pursued through the usual appellate
process after a final decision. See Braden v. 30th Judicial
Circuit Court of Kentucky, 

(1973); Ex parte
Royall, 

, 251–52 (1886).
 We decline to issue a certificate of appealability, and
we dismiss the appeal.

                          6-23-09