Federal Habeas Corpus: Section 2255 Denial
Unlike the federal habeas corpus remedy for state prisoners found in 28 U.S.C. §2254, the section 2255 motion for federal prisoners has long been considered "a continuation of the criminal case whose judgment is under attack.'' See Advisory Committee Notes to Rule 3, Rules Governing Section 2255 Proceedings. Despite this notion, section 2255 proceedings are governed by the rules of civil procedure. Out of this (some would say) unholy alliance of criminal and civil law arises a rule that is unique in federal "criminal" proceedings: there is no appeal as of right for federal prisoners in section 2255 proceedings. This article discusses federal habeas corpus and the section 2255 denial appeal.
Federal Habeas Corpus: Certificate of Appealability (COA) Required to Appeal Section 2255 Denial
In fact, there can be no appeal from a final order in a section 2255 proceeding unless a district or circuit court judge issues a "certificate of appealability" (COA). 28 U.S.C. §2253(c)(1). A certificate of appealability 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). Obtaining a certificate of appealability "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).
Certificate of Appealability (COA) Requirements
The requirement of a certificate of appealability is jurisdictional; without it, the appellate court has no authority to entertain the appeal of a district court's section 2255 denial decision. Miller-El, 537 U.S. at 336. Note that even with a COA, the Rules of Appellate Procedure still apply. As such, the section 2255 movant who successfully obtains a certificate of appealability must still file his notice of appeal in the district court within 60 days of entry of the judgment. Fed. R. App. P. 4(a)(1)(B).
The standard set in §2253(c)(2) is theoretically straightforward: the applicant must make a substantial showing of the denial of a constitutional right. There are two important points to make about the practical application of this standard.
First, to show that reasonable jurists could debate whether the petition could have been resolved differently does not require a showing that the applicant's argument would actually win on appeal. The Supreme Court specifically said that a court "should not decline the application for a COA merely because it believes that the applicant will not demonstrate entitlement to relief." Miller-El, 537 U.S. at 337. This is important because it is the district court judge that denied the section 2255 motion who makes the initial decision to grant or deny a COA.
Second, §2253(c)(2) is more than a procedural bar to appeal; the provision only allows for the issuance of a COA when the substantive question is constitutional in nature. This is a significant impediment to federal prisoners seeking habeas corpus relief. While a section 2255 motion may be used to attack a conviction or sentence on multiple grounds (violation of the Constitution, violation of federal law, otherwise subject to collateral attack, etc.), a district court's ruling on a nonconstitutional section 2255 claim is completely unreviewable. There can be no appeal from a nonconstitutional section 2255 claim.
Federal Habeas Corpus: The Quandary of Raising Constitutional Claims in a Section 2255 Motion
The total bar on appeals of nonconstitutional claims raises a thorny question: What happens when a federal prisoner makes a constitutional challenge in a section 2255 motion, but the district court denies the motion on procedural grounds? Disallowing an appeal in a situation like this would be an injustice, since the movant did raise a constitutional claim, but the court never reached the merits of the claim.
The Supreme Court resolved this issue in Slack v. McDaniel, 529 U.S. at 484. The court said that a COA should issue when "jurists of reason would find it debatable whether the district court was correct in its procedural ruling," if the movant has made at least one facially valid constitutional claim.
Section 2255 Denial: How to Appeal
When an unsuccessful section 2255 movant wishes to appeal, she should file both a notice of appeal and a request for a COA with the district court. Strictly speaking, the request for a COA is not required, as Federal Rule of Appellate Procedure 22(b)(1) directs a district court judge to either issue a COA, or state why a COA will not issue, whenever a movant simply files a notice of appeal. The movant should always file a separate request for a COA, however, so that the movant can argue why the COA should issue.
If the district court declines to issue a COA, the court of appeals will immediately consider the issue itself. The savvy section 2255 movant will file a request for a COA with the appellate court, for the same reasons she filed one with the district court. The movant should never pass on the opportunity to tell the court exactly why she deserves a COA. If both the district court and the appellate court decline to issue a COA, the movant may file a petition for writ of certiorari with the Supreme Court.
Experienced Federal Habeas Corpus Attorneys
The process of attempting to appeal the denial of a section 2255 is an excellent illustration of the complexity of section 2255 litigation. When a federal prisoner seeks habeas corpus relief from a criminal conviction, it makes sense to bring on competent, professional assistance. At the Law Offices of Brandon Sample, we routinely handle federal habeas corpus matters. Our experienced attorneys and staff members can help you successfully navigate the section 2255 crucible, to include appealing a section 2255 denial. Whether you have a federal firearms charge, a sex offense, or were convicted of a white collar crime, we can help you. Contact us now for a consultation.
Federal Habeas Corpus: Section 2255 Denial FAQs
Q: My section 2255 motion was denied, and I want to appeal. Can I appeal the section 2255 denial?
A: The section 2255 motion has long been considered to be a continuation of the federal prisoner's criminal case. But section 2255 motions depart significantly from that notion in one important way: there is no automatic right to appeal a section 2255 denial. This means that an unsuccessful section 2255 movant cannot obtain appellate review of his or her federal habeas corpus motion by simply filing a notice of appeal. Instead, the aggrieved movant must ask the district court and/or the appellate court for permission to appeal.
Q: How can I get permission to appeal the denial of my section 2255 motion?
A: No appeal from a final order in section 2255 proceedings is permitted unless the movant obtains a "certificate of appealability" from either the district court, or the appellate court. There is no way around this federal habeas corpus rule.
Q: How do I obtain a certificate of appealability?
A: When the district court denies a section 2255 motion, the court will typically say whether a certificate of appealability will issue. That decision is sometimes premature, however, so an aggrieved movant should file a standalone request for a certificate of appealability with the district court.
Q: The district court has denied me a certificate of appealability. Is there anything I can do?
A: When the district court denies a certificate of appealability, the court of appeals will consider the issue itself -- if a notice of appeal has been filed (Hint: always file a notice of appeal in the district court if you wish to appeal, and do so immediately upon the section 2255 denial). An unsuccessful section 2255 movant should ensure that the standalone request for certificate of appealability, in which argument as to why a COA should issue is made, is filed with the court of appeals.
Q: What do I need to show to qualify for a certificate of appealability?
A: A certificate of appealability will issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. §2253(c)(1). The applicant must show that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different way." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The applicant need not establish that he or she would actually prevail, just that he or she could prevail. The applicant must also show the denial of a constitutional right. In practice, this means that the denial of a section 2255 motion that was not based on a violation of the Constitution is unreviewable.
Q: I want to appeal the my section 2255 denial, but I am lost. Can you help with my federal habeas corpus needs?
A: The attorneys at the Law Offices of Brandon Sample have considerable experience in section 2255 appellate proceedings. Our professional staff are standing by to consult with you about your situation. Contact us now to discuss how we can help you by using federal habeas corpus to your advantage.