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 U.S.C. §§ 2253, 2254, 2255.

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 22(b).

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 Court's Form 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), (B).

Only the district court can extend the time to file a late notice of appeal for excusable neglect or good cause shown. See FRAP 4(a)(5).

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.

DOCKETING/FILING FEE

No fee is charged for the filing of a COA motion. If a COA is granted, the appellant must pay the $500 filing fee, plus a $5.00 processing fee, to the Clerk of the district court within 14 days of the later of the filing of the notice of appeal or the date the COA was granted.

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 24.

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 24(a); LR 24.1; FRAP 27(a)(1), (2).

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 legibly printed.

Within 14 days of the later of the filing of the notice of appeal or the granting of a COA, 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 sample documents.

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 28 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 47.1, IOP 47.1, and applicable statutes and case law.

Last modified at 12/20/2010