CERTIFICATE OF APPEALABILITY
A prisoner in custody under a sentence imposed by a federal or
state court may appeal the district court’s denial of a motion
(§ 2255 addresses a federal sentence) or petition (§ 2254
addresses a state sentence) for a writ of habeas corpus only
if a district court judge, or if the district court declines,
a judge of this Court, issues a certificate of appealability
(“COA”) stating that the prisoner has made a substantial
showing of the denial of a constitutional right. See 28
§§ 2253, 2254,
This Court will not act on an appeal from the denial of a §
2255 motion or § 2254 petition until the district court has
ruled on a COA. The district court is required to make this
ruling when it issues its final decision. See Rule 11 of the
Rules Governing § 2254 and 2255 Proceedings; FRAP
If the district court judge denies the request for a COA, the
prisoner must file in this Court a motion for COA within
either 28 days of the date of the district court decision or
the date the notice of appeal was filed, whichever is later.
The motion for a COA filed in this Court must include: (1) the
T-1080 Motion Information Statement, (2) a copy of the
district judge’s decision denying the COA, and (3) a statement
that (a) identifies each issue to be raised on appeal and the
relevant facts and (b) makes a substantial showing of the
denial of a constitutional right as to each issue. Though no
fee is required to file this motion, a fee will be required to
proceed with the appeal if the COA is granted. A COA is
generally decided without oral argument.
NOTICE OF APPEAL
A notice of appeal must be filed: (1) in a 28 U.S.C. § 2255
case within 60 days after the entry of the district court’s
decision denying the § 2255 motion; (2) in a § 2254 case
within 30 days following entry of the judgment denying the §
2254 petition. See FRAP 4(a)(1)(A),
Only the district court can extend the time to file a late
notice of appeal for excusable neglect or good cause shown.
If a COA is granted, for purposes of calculating time under
FRAP and the LRs, the appeal is deemed commenced as of either
the date the COA issues or the date the notice of appeal is
filed, whichever is later.
The appellant must pay the $450 filing fee, plus a $5.00
processing fee, to the Clerk of the district court when the
Notice of Appeal is filed. No additional fee is charged for
the filing of a COA motion.
An incarcerated appellant who cannot afford to pay the fee
must file in the district court a motion for in forma pauperis
(“IFP”) status unless the district court has already permitted
appellant to proceed IFP and has not revoked that status. See
28 U.S.C. § 1915; FRAP
If the district court has denied or revoked IFP status, stated
that “no appeal would be taken in good faith,” or stated that
the “appeal is frivolous pursuant to 28 U.S.C. § 1915(d),” the
appellant must pay the filing fee or make a motion in this
Court for IFP.
The motion for IFP must include (1) the Court’s Form T-1080 Motion
Information Statement (see Motions), (2) a statement
explaining the merits of the appeal, and (3) a Financial
Affidavit Form. See FRAP
The motion must be served on all of the other parties in the
case and a proof of service form must be submitted to this
Court with the motion. The motion papers must be typed or
Within 14 days of the filing of the notice of appeal if the
fee has not been paid, an appellant must (1) move for IFP
status in the district court; (2) move for IFP status in this
Court if the district court has denied or withdrawn IFP
status; or (3) notify this Court that the appellant will make
a motion for IFP status within 30 days of the service of
notice that the district court has denied a pending request
for IFP status. If the appellant does not take any of these
actions, this Court may dismiss the case, without further notice, for failure to pay the fee.
If the appeal is dismissed, denied or withdrawn, the filing
fee will not be refunded to appellant.
APPEAL FOLLOWING THE ISSUANCE OF A COA
If the COA issues, the appeal proceeds as a pro se civil
appeal. Upon docketing the Notice of Appeal, the Clerk will
mail to appellant those instructions, related forms, and
SECOND OR SUCCESSIVE PETITIONS FOR A WRIT OF HABEAS CORPUS
A prisoner who has filed in the district court either a (1) §
2255 motion challenging a federal conviction or sentence or
(2) § 2254 petition challenging a state conviction or sentence
may not subsequently file a § 2255 motion or § 2254 petition
again challenging the same conviction or sentence unless
certain conditions are met.
Before filing in the district court a second or successive §
2255 motion or § 2254 petition, the prisoner must file a
motion in this Court for an order authorizing the district
court to consider the second or successive habeas application.
The motion must be made on a form this Court has authorized
for this purpose. There is one form for challenging a state
court conviction or sentence and a separate form for
challenging a federal court conviction or sentence. The forms
are posted on this Court’s website. No fee is charged for
filing the motion in this Court.
The motion must be decided within 30 days after it is filed
with this Court. See 28
U.S.C. § 2244(b)(3); § 2255(h).
If this Court grants the motion, the prisoner may file the
second or successive motion or petition in the district court.
If this Court denies the motion, the prisoner is barred from
filing in the district. This Court’s grant or denial of an authorization to file a second or successive application is not appealable, and it cannot be the subject of a petition for rehearing or motion for reconsideration. See
U.S.C. § 2244(b)(3)(E).
PETITION FOR A WRIT OF HABEAS CORPUS IN A DEATH PENALTY CASE
The rules that govern post-conviction habeas corpus practice
in a death penalty case are set forth in LR
and applicable statutes and case law.
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Last modified at 12/20/2010