Appealing a § 2255 Denial

You cannot appeal a § 2255 denial automatically. You need a “certificate of appealability” — permission to appeal — from the district judge or the court of appeals. And you must file a notice of appeal within 60 days after the judgment, even while you ask for the certificate. Fed. R. App. P. 4(a)(1)(B); Rule 11(b), Rules Governing Section 2255 Proceedings.

A § 2255 motion has long been considered “a continuation of the criminal case whose judgment is under attack.” Advisory Committee Note to Rule 3, Rules Governing Section 2255 Proceedings. But the appeal rules are different from a criminal appeal: there is no appeal as of right.

Outcomes vary. A past result does not predict or guarantee the outcome of any other case.

Why do you need a certificate of appealability?

No appeal may be taken from the final order in a § 2255 proceeding unless a circuit justice or judge issues a certificate of appealability (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).

That standard is met when “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Getting a COA “does not require a showing that the appeal will succeed,” and “a court of appeals should not decline the application . . . merely because it believes the applicant will not demonstrate an entitlement to relief.” Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).

What are the key rules for a COA?

Without a COA, the court of appeals has no power to hear the appeal. Miller-El, 537 U.S. at 336.

Even with a COA, you still must file a timely notice of appeal in the district court — within 60 days after the judgment is entered, because the United States is a party. 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).

Two more practical points:

• You don’t have to prove you will win. You only need to show reasonable jurists could debate the result. This matters because the same judge who denied your motion makes the first decision on the COA.
• The claim must be constitutional. A COA can issue only on “a substantial showing of the denial of a constitutional right.” So a denial of a claim based only on a federal statute or rule is generally not appealable.

What if the court denied your claim on a procedural ground?

For example, the court may have ruled your motion was late without ever reaching the merits. In that case, a COA should issue if “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.” Slack, 529 U.S. at 484.

How do you appeal a § 2255 denial?

The district judge “must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a). The judge may ask the parties for arguments on the COA first — take that chance to explain why reasonable jurists could disagree.

If the district judge denies a COA, you cannot appeal that denial, but you can ask the court of appeals for one. Rule 11(a); Fed. R. App. P. 22(b). Asking the district judge to reconsider the COA denial does not extend your time to appeal. Rule 11(a).

So file your notice of appeal on time no matter what, and file a request for a COA with the court of appeals that explains, issue by issue, why reasonable jurists could debate the result. If the court of appeals also denies a COA, you may ask the Supreme Court for review by petition for certiorari. Hohn v. United States, 524 U.S. 236 (1998).

Common questions

Related pages

Post-Judgment Proceedings: Rule 59 and Rule 60

Questions about your case? Book a consultation to talk it through with Brandon Sample.