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Short answer. A certificate of appealability (COA) is permission to appeal. If a federal judge denies your § 2255 motion, you cannot appeal unless a judge issues a COA. 28 U.S.C. § 2253(c)(1)(B). A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2). You must also file a notice of appeal within 60 days after the judgment.
The COA is a screening step. It keeps appeals that have no reasonable chance of debate out of the courts of appeals. The test is whether reasonable judges could disagree about your claim, not whether you will ultimately succeed. This page explains where the COA rule comes from, who decides, what you must show, and the deadlines. For the full appeal process after a denial, see appealing the denial of a § 2255 motion.
What does COA mean?
COA stands for “certificate of appealability.” It is an order, signed by a district judge or a circuit judge, that lets an appeal go forward on the issues it names. In a § 2255 case, the COA requirement applies to the person who filed the motion. The government does not need a COA to appeal. Fed. R. App. P. 22(b)(3).
Where does the COA rule come from?
Three sources work together:
- The statute. 28 U.S.C. § 2253(c)(1) says that, unless a circuit justice or judge issues a COA, no appeal may be taken from “the final order in a proceeding under section 2255.” Section 2253(c)(2) sets the “substantial showing” standard. Section 2253(c)(3) says the COA “shall indicate which specific issue or issues satisfy” that standard.
- The appellate rule. Under Fed. R. App. P. 22(b)(1), in a § 2255 proceeding “the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability.” If the district judge denies it, “the applicant may request a circuit judge to issue it.”
- The § 2255 Rules. Rule 11(a) of the Rules Governing Section 2255 Proceedings says the district court “must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”
Who decides whether to grant a COA?
The district judge goes first. Under Rule 11(a), the judge rules on the COA when denying the motion. Before doing so, the judge may ask the parties to submit arguments on whether a certificate should issue. If you get that chance, use it to explain why reasonable judges could disagree with the ruling.
If the judge grants a COA, the order must state the specific issue or issues that meet the standard. Rule 11(a). If the judge denies it, you cannot appeal the denial itself, but you can ask the court of appeals for a COA under Fed. R. App. P. 22. Rule 11(a). A motion asking the district judge to reconsider the COA denial “does not extend the time to appeal.” Id.
In the court of appeals, one or more circuit judges consider the request, as that court prescribes. If you file a notice of appeal but no express request for a COA, “the notice of appeal constitutes a request addressed to the judges of the court of appeals.” Fed. R. App. P. 22(b)(2). Many courts of appeals have local rules or forms for COA applications, so check your circuit’s rules.
What is the “substantial showing” standard?
You do not have to show that you will succeed on appeal. The Supreme Court has explained the standard in three main cases.
Slack v. McDaniel: the basic test
A substantial showing “includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Slack: claims denied on procedural grounds
Some motions are denied without reaching the merits, for example as untimely or procedurally defaulted. Then you must show two things: “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. at 484. Both parts are required.
Miller-El v. Cockrell: a threshold look, not a full review
The question is whether “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). This “threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.” Id. at 336. A claim “can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338.
Buck v. Davis: debatable is enough
In Buck v. Davis, 580 U.S. 100 (2017), the Supreme Court reversed a court of appeals that had denied a COA after, in effect, deciding the appeal. The Court stressed that “[t]he COA inquiry . . . is not coextensive with a merits analysis.” At the COA stage, the only question is whether the claim is debatable under the Miller-El test. Repeating Miller-El, the Court warned that a court of appeals that first decides the merits and then denies a COA based on that decision “is in essence deciding an appeal without jurisdiction.” (Quoting Miller-El, 537 U.S. at 336-37.)
The practical lesson: a COA application should show why reasonable judges could see the issue differently. Point to the facts in the record, the governing law, and any disagreement among courts.
Must the claim be constitutional?
The statute requires “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Even for a procedural ruling, Slack asks whether the motion states a valid claim of the denial of a constitutional right. A claim that rests only on a federal statute or a Guidelines rule can be hard to bring through the COA screen, so think about how the claim is framed from the start.
What if the COA does not name the right issue?
Section 2253(c)(3) says the COA must indicate the specific issues that meet the standard. But the Supreme Court has held that this requirement is mandatory but not jurisdictional. A COA’s failure to “indicate” a constitutional issue does not take away the court of appeals’ power to hear the appeal. Gonzalez v. Thaler, 565 U.S. 134 (2012). Even so, the issues named in the COA usually frame the appeal, so if an important issue was left out, ask the court of appeals to add it.
What is the deadline to appeal?
Rule 11(b) of the § 2255 Rules says Fed. R. App. P. 4(a) governs the time to appeal. Because the United States is a party, the notice of appeal must be filed within 60 days after the judgment or order is entered. Fed. R. App. P. 4(a)(1)(B). “A timely notice of appeal must be filed even if the district court issues a certificate of appealability.” Rule 11(b).
A timely Rule 59(e) motion pauses the appeal clock, and a Rule 60(b) motion does so only if it is filed within 28 days of the judgment. Fed. R. App. P. 4(a)(4)(A). See our page on Rule 59 and Rule 60 motions.
What should you do if the district court denies a COA?
- File the notice of appeal on time. Count 60 days from the entry of the judgment. Do not wait for anything else.
- Ask the court of appeals for a COA. The notice of appeal itself counts as a request, but a written application that names each issue and explains why it is debatable gives you a better chance. Fed. R. App. P. 22(b).
- Focus on your strongest issues. Explain, issue by issue, why reasonable jurists could disagree with the district court. For a procedural ruling, address both parts of the Slack test.
Common questions
What is a certificate of appealability?
It is permission to appeal the denial of a § 2255 motion. Without it, the court of appeals cannot hear your appeal. 28 U.S.C. § 2253(c)(1)(B); Fed. R. App. P. 22(b)(1).
What does COA mean?
Certificate of appealability. It names the issues a court of appeals will hear in an appeal from a § 2255 denial. 28 U.S.C. § 2253(c)(3).
When is a certificate of appealability required?
Whenever the person who filed the § 2255 motion wants to appeal the final order denying it. 28 U.S.C. § 2253(c)(1)(B). It is not required when the United States appeals. Fed. R. App. P. 22(b)(3).
Who do I apply to for a certificate of appealability?
First the district judge, who must grant or deny a COA when denying your motion. Rule 11(a), Rules Governing Section 2255 Proceedings. If the district judge denies it, you ask a circuit judge in the court of appeals. Fed. R. App. P. 22(b)(1).
What should I do when a certificate of appealability is denied?
If the district judge denied it, file a timely notice of appeal and ask the court of appeals for a COA. Fed. R. App. P. 22(b). A request to the district judge to reconsider does not extend the time to appeal. Rule 11(a). If the court of appeals also denies a COA, the appeal usually ends there.
Does denial of a certificate of appealability bar a later § 2255 motion?
The COA denial itself does not create a new bar, but it ends the appeal, so the denial of your first § 2255 motion stands. Any later § 2255 motion attacking the same judgment is generally a “second or successive” motion. It needs permission from the court of appeals and must meet the narrow tests in 28 U.S.C. § 2255(h). See second or successive § 2255 motions.
Can I get help with a COA application?
The appeal deadline is short and the COA application is often your only chance to be heard in the court of appeals. Book a consultation and tell us what happened.
Related pages
Appealing the Denial of a Section 2255 Motion
Rules Governing Section 2255 Proceedings