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Habeas Hints: Certificate of Appealability

by Kent Russell

This column is intended to provide “habeas hints” to prisoners who are considering or handling habeas corpus peti-tions as their own attorneys (“in pro per”). The focus of the column is habeas corpus practice under AEDPA, the 1996 ha-beas corpus law which now governs habeas corpus practice throughout the U.S.

CERTIFICATE OF APPEALABILTY: 2010

This Habeas Hints column revisits the Certificate of Appealability (COA) requirement in light of the 2009 amendment to Rule 11 of the Federal Habeas Corpus Rules, which now requires that, at the same time that a District Court Judge makes an order denying a petition for writ of habeas corpus, the judge must also make an order granting or denying a COA.
Traditional COA Requirement

Under AEDPA

If a federal habeas corpus petition is dismissed at the District Court level, to pave the way for a possible appeal, the petitioner must first obtain permission to appeal (a “Certificate of Appealability,” or “COA”) from the District Court. If the District Court denies the COA application, the petitioner can then attempt to obtain one by making a timely motion for a COA in the U.S. Circuit Court of Appeals. (The deadline to apply for a COA in the Ninth Circuit is 35 days after the date of the District Court’s order denying a COA in that court). If neither court grants a COA, then the only remaining option is to try to obtain one from the U.S. Supreme Court – something that is theoretically possible, but which occurs in practice about as often as prisoners get filet mignon for dinner.

COA Application in District Court

Technically speaking, a petitioner does not actually have to make a separate application for a COA, because AEDPA provides that, if no application for a COA is filed, the Notice of Appeal will be “treated as a COA.” However, the Notice of Appeal is simply a one-sentence statement of what is being appealed, and says nothing about why an appeal should be allowed. Therefore, to have any realistic chance at getting a COA, the petitioner will have to make a “Motion for COA” in the appropriate court.

In trying to get the District Court to grant a COA, the petitioner has to apply to the same district judge who denied the petition in the first place. Obviously, it’s no easy task to convince the judge who just denied your petition to grant you a COA, the ultimate purpose of which is to convince the Court of Appeals to reverse the judge’s ruling. Nevertheless, trying to get a COA from the District Court is not as difficult as it sounds, because under AEDPA the judge does not have to ad-mit that s/he was “wrong” in order to issue a COA. Rather, a petitioner is entitled to a COA if he can make a “substantial showing of the denial of a constitutional right.” Appellate courts have described this burden as “relatively low,” and it can be satisfied merely by showing that reasonable judges “could disagree” with the District Court’s reasons for dismissing the case.

Applying for COA Following a Magistrate Judge’s Report and Recommendation
In most federal jurisdictions these days, habeas corpus cases are actually handled by Magistrate Judges, who don’t actually have the authority to grant or dismiss habeas corpus petitions, but who instead make “recommendations” to the District Judge. In practice, though, the District Judge almost always follows the Magistrate Judge’s recommendation in habeas corpus matters – so much so that formal approval by the District Judge is little more than a rubber stamp for whatever the Magistrate Judge recommends.

The Magistrate Judge makes recommendations on habeas corpus in the form of a “Report and Recommendation” (“R&R”). The R&R is issued after the briefing of the case is complete on both sides. However, there is no fixed time limit, and typically many months will have elapsed between the completion of the briefing in the case and the issuance of the R&R, which abruptly kicks the case back into gear. Assuming (as is unfortunately true in the vast majority of cases) that the Magistrate Judge rec-ommends dismissal of the petition, the R&R provides the facts and law which the Magistrate Judge has used to determine that the petition has no merit.
Accompanying the R&R itself is a document entitled “Notice of Report and Recommendation” (“Notice”). The Notice warns the petitioner that, to preserve the right to object on appeal to any of the findings made in the R&R (a right which, if waived, would almost certainly make a successful appeal impossible), the petitioner must file “Objections,” supported by “Points and Authorities,” within a specified time limit. Under the 2009 amendment, the time limit is 20 days from the date of the R&R, and most Magistrate Judges will impose that deadline.
Effect of the 2009 Amendments on the Filing of Objections to the R&R

Prior to the 2009 amendment, the sole function of the Objections was to simply preserve the right to challenge the Magistrate Judge’s findings on appeal. Although that was a vitally important requirement in the appellate process, it was a relatively easy one to satisfy, because virtually any document entitled “Objections to Report and Recommendation” and filed by the clerk would be sufficient for that limited purpose. Furthermore, as for applying for a COA in the District Court, the petitioner would still have another chance to do so during the time that would elapse in between the date that the court overruled the objections and the deadline for filing a Notice of Appeal, which does not expire until 30 days after the date of the Judgment formally dismissing the case.

Accordingly, under the former procedure, there was no harm in hastily filing Objections within the original time frame, and then using the additional time after the Judgment was entered to work on and file a much “stronger” motion for a COA. That is no longer true, however, because the 2009 amendment to Rule 11 eliminates any second bite at the COA apple. Rather, the Objections themselves – along with whatever is filed at the same time as the Objections – will be all that the District Court uses to decide whether or not to issue a COA.

Habeas Hints

With the foregoing in mind, I suggest the following “Habeas Hints” as a means of dealing effectively with the 2009 amendment to Rule 11.

• Make a timely application for a 30-day extension of time to file the Objections.
Because the 2009 amendment makes it imperative to seek a COA before the Objections are ruled on, the due date for filing the Objections will dictate how much time the petitioner has to prepare a COA application – a task that is more challenging than filing the Objections themselves. Therefore, and because the 20-day statutory period provided for filing the Objections is so short, petitioners should routinely ask for an extension of 30 days within which to file the Objections. Initial applications for 30-day extensions of time are always granted, so long as the extension request is made within the initial time limit. Then, once the extension is granted, you can use that additional time not only to draft the Objections but also to prepare your motion for a COA.

• File a separate motion for a COA when you file your Objections.

As noted above, the functions served by the Objections and the COA motion are different. Hence, I recommend that two separate documents be filed at the same time. Below are some formatting suggestions for both documents.

• Filing the “Objections to Report and Recommendation.”

Start with an “Introduction” section in which you provide the Magistrate Judge’s name, the date of the Report and Recommendation, the original due date for the Objections, and a statement either that your Objections are being filed within that time frame or within the limit provided in response to a timely motion to extend the original deadline.

Entitle your next section, the main one, “Objections to R&R and Supporting Points and Authorities” (the latter will be woven into the former). List each objectionable factual finding in the R&R by page and line – including instances in which the Magistrate Judge purports to resolve credibility contests against you without holding an Evidentiary Hearing – and then provide your reasons for each objection. Only object to factual findings with which you actually disagree, and where you can support your position by citations to the record. As for legal argument, read all the cases cited by the Magistrate Judge and object wherever a case is disapproved, distinguishable, or does not stand for the proposition for which the Magistrate Judge cites it.

If you are seeking relief on more than one habeas claim, use separate subsections for each claim. It’s best to list at least one objection for each habeas claim on which you intend to seek relief on appeal. However, you don’t have to con-tinue to defend each claim you made in the habeas petition, and the Objections are a good place to start to jettison weaker claims which have not panned out.

Wind up with a “Conclusion” in which you state, for example: “Based on the foregoing, the Magistrate Judge’s rec-ommendation should be rejected, and the matter placed on the Court’s calendar for an evidentiary hearing.”

• Filing the “Motion for COA in District Court.”

I. Start with an INTRODUCTION, in which you call the court’s attention to the 2009 amendment to Rule 11, and ex-plain why, in light of that amendment, you are now applying for a COA in tandem with filing your Objections. Consider the following language:

“Previously in this matter, the Magistrate Judge issued a Report and Recommendation recommending the summary denial of Petitioner’s Petition for Writ of Habeas Corpus, and the dismissal of this case with prejudice. Petitioner filed timely Objections to the Report and Recommendation, which are now pending. At this juncture, the Court has not yet ruled on the Objections. However, pursuant to the 2009 amendment to Rule 11 of the Rules in Section 2254 cases, the district court must issue or deny a Certificate of Appealability when it enters an order adverse to applicant. Hence, in the event that the district court overrules the Objections, Petitioner respectfully requests the issuance of a Certificate of Ap-pealability [hereafter “COA”].
The issues on which a COA is sought are set forth in § II, infra.

The legal standard applicable to granting or denying a COA is set forth in § III, infra.
A summary of the grounds for issuance of a COA in this matter is provided in § IV, infra.
This request is also based upon the files and records in this case, including but not limited to the Petition and support-ing exhibits, the Traverse Brief filed heretofore, and the Objections to Report and Recommendation, which were recently filed.”

II. Section II should be: “ISSUES ON WHICH A COA IS SOUGHT.” Again, feel free to abandon weaker claims which were included in the petition but in which you have since lost confidence. As to the claims you do want to pursue, list them as questions; for example, “Whether Trial Counsel Was Ineffective.”

III. Entitle this section: “LEGAL STANDARD FOR ISSUANCE OF A COA.” You can use the following language:

“The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides that, in order to take an appeal from a final order denying habeas corpus, a Certificate of Appealability must be obtained from a circuit justice or from the district court judge. 28 U.S.C. § 2253, subd. (c)(1).
In order to obtain a COA, the petitioner must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). However, the petitioner need not show that he should prevail on the merits. Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (en banc) [“... [O]bviously the petitioner need not show that he should prevail on the merits. He has already failed in that endeavor”]. Rather, the petitioner is merely required to make the “modest” showing (Lambright, supra, at 1025) that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). As explained by the Ninth Circuit in Jennings v. Wood-ford, 290 F.3d 1006 (9th Cir. 2002), the substantial showing standard required for a COA is “relatively low.” Id., at 1011, citing Slack, supra. Hence, a COA must issue if any of the following apply: (1) the issues are debatable among reasonable jurists; (2) another court could resolve the issues differently; or (3) the questions raised are adequate enough to encour-age the petitioner to proceed further. Finally, “The court must resolve doubts about the propriety of a COA in the peti-tioner’s favor.” Jennings, supra, citing Lambright, supra, at 1025.”

IV. Section IV should be entitled: “ARGUMENTS SUPPORTING ISSUANCE OF COA.”
Phrase your arguments in declarative sentences, e.g., “Reasonable Jurists Could Differ as to Whether Counsel was Ineffective.” State each of your habeas claims and provide a succinct summary of the facts and law supporting each claim. Then explain how the Magistrate Judge erred in denying each claim.

Keep in mind that showing how the Magistrate Judge erred is very similar to what you should have already done in your Objections. Hence, if you are satisfied with the Objections you have filed, you can simply ask the judge that the Ob-jections be “incorporated by reference” in your COA motion, and/or you can attach the Objections as an exhibit to your motion.
V. CONCLUSION: Again, remind the judge how the COA motion relates to your Objections.
For example:

“For the reasons stated herein, should the District Court overrule Petitioner’s Objections to the Report and Recom-mendation and enter an order denying Petitioner’s habeas corpus petition and dismissing this case with prejudice, the Court should issue a COA as to the ‘Issues on Which a COA is Sought.’”

Kent A. Russell specializes in habeas corpus and is the author of the California Habeas Handbook, which thoroughly ex-plains state and federal habeas corpus under AEDPA. The 5th Edition, completely revised in September 2006 and recently updated in 2010, can be purchased for $49.99, which includes priority mail postage. Only prisoners who are paying for the book with a state-issued check or one from their prison account are eligible for the special prisoner discount price of $39.99, which must be claimed at the time of purchase. An order form can be obtained from Kent’s website (www.russellhabeas.com), or simply send a check or money order to: Kent Russell, “Cal. Habeas Handbook,” 2299 Sutter Street, San Francisco, CA 94115.