Tag Archives: certificate of appealability

Benefit of the Dout – Update for December 2, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

6TH CIRCUIT CUTS INMATE FILER A BREAK ON CONFUSING PLEADING

cutbreak221201Eighty-three days after his judge denied his 28 U.S.C. § 2255 motion, Joe Reho filed something with the district court. It may have been a motion for an extension of time to apply for a certificate of appealability. It may have been a notice of appeal. No one was quite sure what it was, but everyone was quite sure it was written without the benefit of a dictionary nearby.

The district court decided it must be a notice of appeal and dismissed it as being 23 days late.

Last week, the 6th Circuit remanded the case, concluding that Joe’s motion, which repeatedly asked for an extension of time, “is better construed as a motion for extension of time to file a notice of appeal.”

grammar221201Under Rule 4(b)(4) of the Federal Rules of Appellate Procedure, district court may extend the time to file a notice of appeal based on “excusable neglect or good cause” if an extension is filed within 30 days after the notice of appeal due date. Here, Circuit said, construing Joe’s “filing liberally, we conclude that he moved for an extension of time to file a notice of appeal. While the district court docketed the document as a notice of appeal, Joe’s motion requested, in the opening paragraph, ‘a extention of time to filed a certificate of Appealability… and to proceed inform a peuperis on appeal.”

CantSpell221201“This court construes pro se habeas petitions liberally,” the 6th held, apparently even where spelling and grammar are butchered. “For instance, we regularly construe notices of appeal as applications for a certificate of appealability… We have also construed motions for extension of time as notices of appeal… Repo’s motion appears to ask for an extension to apply for a certificate of appealability rather than for an extension to file a notice of appeal. But his motion is a far cry from the simple notices of appeal that we have refused to construe as motions for extension… Repo’s motion reads as a motion for extension of time to file a notice of appeal and will be treated as such.”

Reho v. United States, Case No 22-3784, 2022 U.S.App. LEXIS 31392 (6th Cir., Nov. 14, 2022)

– Thomas L. Root

Chewing on a Procedural Pretzel – Update for January 27, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

NO PERMISSION NEEDED FOR AN APPEAL FOR WHICH PERMISSION NEEDED

“Huh?” you ask. No wonder.

This problem has happened to inmates before, especially during pandemic lockdowns. In 2015, Serwan Mizori filed a 28 USC § 2255 motion arguing that his lawyer had rendered ineffective representation. The motion languished for four years before his court got around to denying it.

pretzel2230127Once the court acted, Serwan had 60 days under the rules to file his notice of appeal (NOA). But as luck would have it, he was confined in the Special Housing Unit (“SHU”) for some prison rules violation right about then, and had no access to stamps or a law library. He got out of the SHU about two weeks after the NOA was due.

Serwan filed an NOA and a motion for leave to file it late under Federal Rule of Appellate Procedure 4(a)(5)(A)(ii). The district court turned him down, so Serwan appealed its denial of his right to file the NOA. To turn this into even more of a procedural pretzel, the 6th Circuit first took up the question of whether he needed a certificate of appealability (COA) to appeal denial of his motion to late file the NOA.

Section 2253(c)(1)(A) of Title 28 provides that unless a circuit justice or judge issues a COA, an appeal may not be taken from “the final order in a habeas corpus proceeding in which the detention complained of arises out of process” issued by a court. A COA is a ruling that the issue to be appealed is one that is subject to reasonable dispute, one that “jurists of reason” would find debatable.

Last week the Circuit ruled Serwan could argue his procedural motion without a COA. The Court said that for COA purposes, a “final order… disposes of the merits of a habeas corpus proceeding.”

rules201202Here, the district court’s two-page order denying Serwan’s motion under Rule 4(a)(5) “plainly did not dispose of the merits of his 2255 motion,” the Circuit said. “The district court’s July 2019 order denying the 2255 motion had already done that; and the order that Mizori seeks to appeal now said nothing about the merits of his underlying § 2255 motion.”

Thus, Serwan could proceed with appealing the denial of his late-filed notice of appeal without a COA. If he wins that, then he will require a COA.

No wonder lawyers make big bucks.

Mizori v. United States, Case No, 19-2433, 2022 U.S. App. LEXIS 1639 (6th Cir., Jan. 20, 2022)

– Thomas L. Root

COAs a Rigged Game in 11th Circuit, Supreme Court Petitioner Alleges – Update for February 12, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SUPREME COURT PETITION QUESTIONS COA UNFAIRNESS

habeasB191211For federal prisoners, the last chance to argue that your conviction or sentence was unlawful comes within a year of the conviction becoming final, in a habeas corpus petition filed according to the restrictions of 28 USC 2255. Virtually all of those are denied by the district court that convicted and sentenced the petitioners, because, face it, how many people – even judges – like to admit they screwed up?

Appeal of a denied 2255 motion is not automatic. Instead, Congress has decreed that would-be appellants get a certificate of appealability (“COA”), granting permission to appeal on a per-issue basis, before briefing can go forward.

COAs are the key to the kingdom: you cannot appeal an order dismissing your 2255 claim without one. But a petition for writ of certiorari before the Supreme Court now asks what it means for due process and access to courts if petitioners in one circuit, are 69% more likely to get a COA issued than similar movants in another?

slot161208The petition – filed by a Columbia Law School professor on behalf of an Alabama state inmate – contends the arbitrariness in COA rulings by appellate courts, particularly the 11th Circuit, reflects a systemic breakdown in the COA review process.

“A lot of petitioners are pro se, and they’re not really getting reviewed anymore,” Prof. Bernard Harcourt told the National Law Journal last week. “It’s almost as if the [statutory] mechanism requiring a COA has closed the gate on federal circuit review of their habeas denials.”

Harcourt filed the petition on behalf of Phillip Tomlin, who has been in state prison for 42 years serving life without parole. The 11th Circuit denied Tomlin a COA last year on a legal question that the Court had explicitly left open in a 2011 decision, by applying “an improper, too demanding, and unduly burdensome” COA standard, the petition argues.

dice161221Tomlin’s COA was denied by 11th Circuit Judge Charles Wilson (who grants a mere 2.7% of COAs he reviews, according to a Columbia University Law School study published two months ago). The study showed significant disparities in grant rates for capital prisoners (58%) and noncapital prisoners (8%) in the 11th Circuit. Of more concern, the study suggests that it’s a crap shoot for any COA filer. The 11th Circuit using a single judge to review COA requests, and the grant rates among those judges range from a low of 2.33% to a high of 25.8% – more than an order of magnitude.

The study also compared the 11th to the 1st Circuit, finding that the 11th Circuit’s 8.4% noncapital COA grant rate is far below the 1st Circuit’s 14.3%.”

The Supreme Court has ordered the State of Alabama to file a response by Feb. 24. The Court will then decide whether to hear the case.

Petition for Writ of Certiorari, Tomlin v Patterson, Case No. 19-7127 (Dec 27, 2019)

Udall, Certificates of Appealability in Habeas Cases in the United States Court of Appeals for the Eleventh Circuit: A Study (Columbia Law School, Dec 24, 2019)

National Law Journal, Have Circuit Courts ‘Closed the Gate’ on Some Inmate Appeals? (Feb 5)

– Thomas L. Root

No Beckles Today, But Supremes Issue Interesting COA Opinion – Update for February 22, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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BECKLES V. UNITED STATES NOT DECIDED YET, BUT SUPREME COURT SPANKS 5TH CIRCUIT IN “BLACKS ARE VIOLENT” CASE

The Supreme Court issued three opinions this morning, one of which was criminal. A decision in Beckles v. United States was not handed down, but given that the three decisions decided today were argued in October, November and early December, we anticipate that Beckles could pop at any time.

scotus161130The interesting case handed down is Buck v. Davis, a Texas death penalty case in which the defense attorney amazingly enough introduced expert testimony that his client was more likely to be violent because he is black. After Buck lost his habeas corpus in state court, and was denied habeas in federal district court and the 5th Circuit Court of Appeals.

What may be of general interest to federal petitioners is the Supreme Court’s spanking of the 5th Circuit for that court’s stingy denial of Buck’s certificate of appealability. The Supreme Court complained that the Circuit “exceeded the limited scope of the COA analysis. The COA statute sets forth a two-step process: an initial determination whether a claim is reasonably debatable, and, if so, an appeal in the normal course. 28 U. S. C. § 2253. At the first stage, the only question is whether the applicant has shown that ‘jurists of reason could disagree with the district court’s resolution of his constitutional claims or… could conclude the issues presented are adequate to deserve encouragement to proceed further’.”

Here, the Supreme Court said, the 5th Circuit “phrased its determination in proper terms. But it reached its conclusion only after essentially deciding the case on the merits, repeatedly faulting Buck for having failed to demonstrate extraordinary circumstances. The question for the Court of Appeals was not whether Buck had shown that his case is extraordinary; it was whether jurists of reason could debate that issue.”

The 5th Circuit is hardly alone in this approach. We think mostly of the 4th Circuit, which has COA petitioners file an “informal brief,” which suggests that the COA is being granted or denied based on an analysis of the entire case rather than the rather low bar of “appealability.”

Branding your own client with a racist stereotype? Bad lawyering...
           Branding your own client with a racist stereotype? Bad lawyering…

The Supreme Court held that Buck’s lawyer was ineffective and Buck was prejudiced thereby. It sent the case back for resentencing.

The Supreme Court has not yet announced the next date for issuance of opinions, but it generally gives not much more than week’s notice. The argument dates of the three announced today suggests that Beckles is on track for a March issuance.

Buck v. Davis, Case No. 15–8049 (Supreme Court, February 22, 2017)

– Thomas L. Root

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