Certificate of appealability

In the most common types of habeas corpus proceedings in the United States federal courts, a certificate of appealability is a legal document that must be issued before a petitioner may appeal from a denial of the writ.[1] The certificate may only be issued when the petitioner has made a "substantial showing of the denial of a constitutional right".[2]

The application may be made explicitly, but a notice of appeal made without a certificate of appealability is treated as an implicit application for the certificate.[3] "To obtain a [certificate of appealability], the [petitioner] must make a request to a district or circuit court judge. In the application, the [petitioner] includes the issues he wishes to raise on appeal. In general, the application process is informal, there is no hearing, and the government rarely files a brief in response to the prisoner's request. The determination is simply made in chambers. If the district court judge denies the request, the [petitioner] may apply to the circuit judge. In addition, a notice of appeal to the circuit court can be treated as a request for a COA."[4]

Under Rule 22 of the Federal Rules of Appellate Procedure, "a certificate of appealability is not required when a state or its representative or the United States or its representative appeals."[5] A certificate of appealability is also not required for petitioners seeking a writ of coram nobis; however, the writ of coram nobis is only available for those who are no longer in-custody (or on probation) and the issues raised in the petition could not have been known while the petitioner was in-custody.[6]

The Antiterrorism and Effective Death Penalty Act of 1996 changed the procedures for issuing a certificate of appealability in federal court. Under the 1996 law, there can be no appeal from a final order in a §2255 proceeding unless a circuit justice or judge issues a certificate of appealability.[7]

The United States Supreme Court held in Slack v. McDaniel, 529 U.S. 473 (2000), that the standard for issuing a certificate is whether "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner".[8]

  1. ^ See Fed. R. App. P. 22(b)(1).
  2. ^ 28 U.S.C. § 2253(c)(2).
  3. ^ See Fed. R. App. P. 22(b)(2) ("If no express request for a certificate is filed, the notice of appeal constitutes a request addressed to the judges of the court of appeals.").
  4. ^ Margaret A. Upshaw, The Unappealing State of Certificates of Appealability Archived 2016-05-14 at the Wayback Machine, 82 U. Chi. L. Rev. 1609, 1615 (2015).
  5. ^ Fed. R. App. P. 22(b)(3).
  6. ^ United States v. Baptiste, 223 F.3d 188, 189 n. 1 (3d Cir.2000)
  7. ^ Welch v. United States, 578 U.S. ___, No. 15-6418 (2016).
  8. ^ Welch, slip op. at 6 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)) (quotation marks omitted).