Federal Habeas Corpus: The Procedures for Obtaining a COA

While your right to federal habeas corpus is protected by the Constitution, your ability to appeal the denial of habeas relief is not. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), Congress severely limited the ability of prisoners in appealing the denial of habeas relief. Let`s take a closer look at the procedures for obtaining a COA.

What is a COA?

Ever since the early 1900s, a “certificate of probable cause” (COPC) was required by state prisoners appealing denials of federal habeas relief. In the 1970s, some federal judges began urging Congress to extend the COPC requirement to federal prisoners. While federal prisoners at the time were not required to get approval to appeal through a COPC, they were subject to fines or other sanctions if their appeals were frivolous.

In 1972, Congress started exploring the idea of a COPC for federal prisoners, but it wasn`t until the AEDPA was enacted in 1996 that the COPC requirement was renamed to “certificate of appealability” (COA) and applied to all prisoners appealing denials of federal habeas relief.

The Standard for Issuance of a COA

Exactly what`s required to meet the standard for obtaining a COA has taken much of the Supreme Court`s time since the AEDPA revised the statutes governing COAs. And most of the time, the Court has held that the lower courts had used a standard that was too harsh in denying a COA to a habeas petitioner. Repeatedly in these cases, the Court has said that the COA standard is only a “threshold” inquiry into whether a COA should be granted for an appeal. It`s not about whether relief could be granted.

The Court came up with the “debatable among reasonable jurists” standard in evaluating whether a COA should be granted for an appeal. Miller-El v. Cockrell, 537 U.S. 322 (2003). That`s the measuring stick a court should use in deciding to grant a COA. It`s not a high bar. (By the way, jurists are judges, not those people who sit in the jury box, they`re called jurors.) Under this standard, you don`t have to prove that your claims would succeed on appeal or that you would be entitled to relief.

Obtaining a [COA] does not require a showing that the appeal will succeed, and a court of appeals should not decline the [COA] application merely because it believes the applicant will not demonstrate an entitlement to relief. Welch v. United States, 136 S. Ct. 1257 (2016)

One of the easiest ways to show a district court`s assessment of your claims would be debatable is to point to decisions in other courts that have granted similar claims as yours. Another way is by showing that your issue would be one of first impression in the court of appeals, or that courts are divided in other circuits over the same claim that you have. There`s nothing like two judges coming to different conclusions to show that something is “debatable.” See United States v. Robinson, 221 F. Supp. 3d 1088 (E.D. Ark. 2016).

The actual standard for granting a COA largely depends on the substance of your claims. A COA may be granted “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. sec 2253(c)(2). The Supreme Court has also defined this as a showing that “reasonable jurists would find the district court`s assessment of the constitutional claims debatable or wrong.” Tennard v. Dretke, 542 U.S. 274 (2004).

The key word there is “constitutional.” You claims must have a constitutional basis to be granted a COA. Even if a claim has a mixed basis of statutory and constitutional concerns, that`s enough to meet the constitutional requirement of the COA statute, sec 2253(c)(2). United States v. Mulay, 805 F.3d 1263 (10th Cir. 2015).

However, this does not mean that the court can dig into the merits of your claims in deciding whether to grant or deny a COA. If the court does this, the Supreme Court said in Miller-El that this constitutes deciding an appeal without jurisdiction. If a court decides the merits of a claim to see if it`s worthy of an appeal, it is effectively deciding the merits of the appeal without a COA. Since a COA is a jurisdictional bar, a court of appeals cannot do this.

What if the district court denies a COA not on the basis of the claims but on some procedural issue, such as the petition being filed too late? There is a two-step showing for obtaining a COA in this instance: (1) you must show that the court`s procedural ruling would be debatable (i.e., that it`s debatable your filing was too late), and (2) you must also show that the constitutional claim is “colorable.” A claim is colorable when there is a “fair probability or a likelihood, but not certitude, of success on the merits.” Miller v. Reed, 176 F.3d 1202 (9th Cir. 1999).

With the court looking at your claims but not digging too deep in order to determine if a COA should be granted, things can get messy rather fast. Again, the Supreme Court has tried to clean this up but the courts continue to make a mess of the COA standard.

Which Court Can Grant a COA?

Both the district court and the court of appeals have the authority, under sec 2253, to grant you a COA to appeal the denial of federal habeas relief. But there was much debate on this topic in the years leading up to the AEDPA. Some judges said that the district court judge, whose judgment is being challenged in a federal criminal case, should be the one who decides whether an appeal could be filed if he denies habeas relief to a federal prisoner. Some judges had a problem with a district court granting permission to appeal for any habeas petitioner, when the court of appeals should be the one to make this decision.

In the end, both courts were authorized to grant or deny a COA under sec 2253(c) and Federal Rule of Appellate Procedure (FRAP) 22(b). This gives you two chances for a COA: one in the district court, and one in the court of appeals. You can even ask the court of appeals to “expand” the COA the district court grants to include more issues for appeal.

Time Limits to Filing a Motion for a COA

The time to file your motion for a COA varies by circuit. While the Ninth Circuit allows 35 days, the Third Circuit allows just 21. Some don`t even have a set time limit, such as the Sixth Circuit`s “as soon as possible” time limit. Whatever the time limit may be in your circuit, the clock starts when your notice of appeal is docketed in the court of appeals. Since a premature COA motion can be rejected by the clerk, it`s best to ask the court clerk what the time limit is and when it starts in that court.

What Should a COA Motion Look Like?

A COA motion comes in many forms and sizes. The best way to request a COA is by way of a formal motion meeting all the court`s rules. However, other filings can be construed as a motion for a COA, should you fail to file a motion asking for one. Even a notice of appeal can pull double duty as a motion for a COA, but you`d be “hard put” to meet the COA standard with just a bare notice of appeal, one court rightly observed. West v. Schneiter, 485 F.3d 393 (7th Cir. 2007).

While pro se filers are given leeway on style and formatting, they must still follow the court`s rules. Page limits are strictly enforced in most courts for COA motions. Some courts refer to FRAP 32, which limits appeal briefs to 30 pages. Other courts refer to FRAP 27, which limits motions to just 20 pages. Since a court may strike any pages exceeding this limit or even the entire motion, it`s best to ask the court what the limits are.

Dealing with Defects in the COA Order

The order granting a COA must be legally correct. If there are any problems with the district court`s order, you should urge the court to fix them. Why? Perhaps the Supreme Court said it best:

Habeas petitioners have every incentive to request that defects [in a COA order] be resolved, not only to defuse potential problems later in the litigation, but also to ensure that the issue on which they sought appeal is certified and will receive full briefing and consideration. Gonzalez v. Thaler, 565 U.S. 134 (2012)

The most common error by the district court in granting a COA is the failure to specify what grounds are certified for an appeal. I`ve seen too many times where the COA order simply said a COA was granted, but then when the court of appeals asked for further clarification the district court changed course and denied a COA altogether. It may be better that you ask the district court to clarify its order right away, than wait for the court of appeals to do so after the case has been transferred there.

Reconsideration of the Denial of a COA

You can`t appeal the denial of a COA by the district court. Instead, you are authorized under Federal Habeas Rule 11(a) to ask the court to “reconsider” its denial of a COA. But note that this is not a motion for reconsideration under Federal Rule of Civil Procedure 59(e), as it would be in other instances. A motion to reconsider under Rule 11(a), unlike Rule 59(e), doesn`t extend the time to file a notice of appeal, so be sure you meet the deadline for your notice while you`re asking the district court to reconsider a COA (currently 30 days for state prisoners and 60 days for federal (See FRAP 4(a)(1)).

If the district court still refuses to grant a COA, then you must file a COA motion in the court of appeals. If the court of appeals denies a COA, then there`s no “reconsideration.” Instead, you file for a “rehearing,” which requires some specific procedures. A motion for rehearing must be filed within a certain time, and each circuit is different. The labeling of your filing matters in some circuits. In the Eleventh Circuit, the court calls it a “petition” for a rehearing, which doesn`t fall under any of the rules for a “motion” in the court. While a motion can be filed within 45 days there, a petition is limited to only 21 days. Be aware of these little differences in the circuits.

IN CONCLUSION, the standard for obtaining a COA is not a high bar, but the way to go about it can be daunting. Understanding the local rules and procedures will go a long way in helping you obtain a COA to properly appeal the denial of habeas relief.

Dale Chappell has hundreds of published articles on federal habeas corpus and is the author of the Insider`s Guide series of post-conviction books, including Federal Habeas Corpus for State Prisoners, and Habeas Corpus for Federal Prisoners. Follow his blog at www.ZenLawGuy.com and at Twitter: @zenlawguy.com.

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