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]
^SeeFed. 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.").
^Margaret A. Upshaw, The Unappealing State of Certificates of Appealability 2016-05-14 at the Wayback Machine, 82 U. Chi. L. Rev. 1609, 1615 (2015).
certificate, appealability, most, common, types, habeas, corpus, proceedings, united, states, federal, courts, certificate, appealability, legal, document, that, must, issued, before, petitioner, appeal, from, denial, writ, certificate, only, issued, when, pet. 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 References edit See Fed R App P 22 b 1 28 U S C 2253 c 2 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 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 Fed R App P 22 b 3 United States v Baptiste 223 F 3d 188 189 n 1 3d Cir 2000 Welch v United States 578 U S No 15 6418 2016 Welch slip op at 6 quoting Slack v McDaniel 529 U S 473 484 2000 quotation marks omitted nbsp This law related article is a stub You can help Wikipedia by expanding it vte Retrieved from https en wikipedia org w index php title Certificate of appealability amp oldid 924332615, wikipedia, wiki, book, books, library,
