by Dale Chappell

Federal law says that you have the “right” to appeal the denial of federal habeas corpus relief, but there’s a catch—only if the court says that you can. Congress limited the ability to appeal the denial of habeas relief under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), requiring several steps before the Court of Appeals will even hear your appeal. Here’s a closer look at how all of that works.

The Notice of Appeal

According to the Federal Rules of Appellate Procedure (“FRAP”), your notice of appeal is what gives the Court of Appeals jurisdiction to hear your appeal. Your first step, then, is to file your notice in the proper court. FRAP 3(a)(1) says that a notice of appeal must be filed in the District Court, with a copy mailed to the government.

Even if the District Court granted you a certificate of appealability (“COA”), you must still file a notice of appeal. What constitutes a notice of appeal, though, is not too rigid. Your motion requesting a COA can also serve double duty as a notice of appeal. See Restum v. United States, 2018 U.S. App. LEXIS 18414 (6th Cir. July 5, 2018). As long as you make your intent known that you want to appeal, it’s considered a “notice of appeal.”
Time for Filing a Notice of Appeal
State prisoners get 30 days to file a notice of appeal, and federal prisoners get 60 days. FRAP 4(a)(1). This clock starts ticking the day after the District Court clerk enters judgment on the docket (and not when the judge signs the order denying relief).

The time limits under FRAP 4(a) are jurisdictional because the rule is rooted in federal statute that requires this time limit. A court does not have the authority to overlook a late notice of appeal, with two exceptions discussed below. Bowles v. Russell, 551 U.S. 205 (2007).

If you are filing from prison, your notice of appeal is considered “filed” on the date that you hand it to prison officials for mailing to the court. This is the so-called “prison mailbox rule,” which was recognized by the Supreme Court in Houston v. Lack, 487 U.S. 266 (1988). See also FRAP 4(c).

Should you happen to file your notice of appeal before judgment is entered by the clerk, your notice will be filed by the clerk the day that judgment is entered. That is, you don’t have to refile your notice of appeal. FRAP 4(a)(2).

Extending the Time to Appeal

Courts are authorized to extend the time to file your notice of appeal, and there are two provisions that allow this.

(1) FRAP 4(a)(5): This provision extends the appeal clock. The District Court may extend the time to file a notice of appeal up to 30 days, if the notice is filed within 30 days of the deadline and the court finds “excusable neglect or good cause.” Excusable neglect has been defined as “inadvertence, mistake, or carelessness, as well as intervening circumstances beyond the party’s control.” Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380 (1993). Good cause has been defined as a delay that was due to something beyond a person’s control and only applies in cases in which there is no fault—excusable or otherwise—by the party seeking extension. Alexander v. Saul, 5 F.4th 139 (2d Cir. 2021). Excusable neglect and good cause are not interchangeable. FRAP 4(a)(5) Advisory Committee’s Notes to 2002 Amendments. Diligence is also required for making both of these showings under FRAP 4(a)(5).

(2) FRAP 4(a)(6): This provision restarts the appeal clock by allowing the District Court to reopen the time to file a notice of appeal for 14 days, if you didn’t receive notice of the judgment and your motion to reopen is received within 180 days of the date that the judgment was entered.

The COA Requirement

The requirement of a COA to appeal the denial of federal habeas relief is a jurisdictional bar that the court cannot ignore. While 28 U.S.C. § 2253(c)(1) says that an appeal may not be taken from a final order denying habeas relief unless a COA is issued, the Supreme Court has ruled that a COA is jurisdictional only to the extent that it allows the Court of Appeals to “rule on the merits” of the appeal. Miller-El v. Cockrell, 537 U.S. 322 (2003).

There are three parts to § 2253(c), and only the first part is jurisdictional: (1) unless a COA is issued, “an appeal may not be taken,” (2) a COA may issue only upon a “substantial showing of the denial of a constitutional right,” and (3) the COA must indicate the specific issue(s) for appeal.

If the District Court doesn’t grant or deny a COA when it denies your habeas petition, the Court of Appeals will send it back for the District Court to do so. But you don’t have to do anything. Once the District Court fulfills its obligation, your case goes back to the Court of Appeals. No need for another notice of appeal.

You Can Only Appeal What Is Authorized in the COA

The only issues you can raise on appeal are those certified in the COA. If you don’t argue an issue that was in the COA, you’ve forfeited that issue. Any issue that’s not in the COA cannot be appealed, but you can ask the Court of Appeals to “expand the COA” to include more issues. There is an exception to all of this: if an error would cause a “miscarriage of justice” if not addressed on appeal, then it can be raised regardless of whether it’s in the COA. Beazley v. Johnson, 242 F.3d 248 (5th Cir. 2001).

A COA Is Not Always Necessary

There are several instances when you don’t need a COA to appeal the denial of a habeas case. First, the Supreme Court ruled in Miller-El that you only need a COA if you are the loser. If you were granted relief and you want to appeal the relief granted, then you don’t need a COA. The Supreme Court says that the “final order” referred to in § 2253(c)(1) means final orders that dispose of your case adversely to you.

The denial of some collateral orders in your habeas case may not need a COA. For example, a District Court’s order transferring your habeas case to the Court of Appeals as a second or successive motion usually doesn’t require a COA. And you also don’t need a COA to appeal the District Court’s dismissal of your habeas petition as second or successive. Both of these cases do not result in the adverse disposal of your case because the District Court never had jurisdiction to even hear the case. Hubbard v. Campbell, 379 F.3d 1245 (11th Cir. 2004).

You might not be surprised by this, but the government doesn’t need a COA to appeal the grant of your habeas petition. The courts have held that the COA requirement is to filter out prisoner-filed habeas appeals, not appeals by the government.

You Can Appeal to the Supreme Court Without a COA

You don’t need a COA to appeal a habeas denial to the Supreme Court. In fact, there’s no rule or statute requiring a COA in the Supreme Court. The Court itself declared in Hohn v. United States, 524 U.S. 236 (1998), that it has jurisdiction to hear an appeal from the denial of a COA in the lower courts. The Court said its jurisdiction comes not from § 2253(c) but from 28 U.S.C. § 1254(1), which governs the cases that the Supreme Court has jurisdiction to hear. Section 2253(c) only applies to the Court of Appeals, the Court said.

As with any appeal to the Supreme Court, you have 90 days in which to file your petition for a writ of certiorari with the Supreme Court clerk. The clock starts the day after the Court of Appeals enters its order denying a COA or a rehearing, not when it enters its mandate.

Appealing In Forma Pauperis

If you can’t afford to pay the filing fee in the Court of Appeals (currently $505.00), you can ask the court to waive the fee by filing for in forma pauperis (“IFP”) status. The District Court is tasked with determining whether you qualify for IFP status, even though you are filing your appeal in the Court of Appeals.

Usually it’s the Court of Appeals clerk who sends the IFP application to you. If the clerk doesn’t send the form, ask for it. You will need to file the form the court uses. If you did file an IFP application in the District Court and were denied, you don’t appeal the denial; instead, you simply re-file in the Court of Appeals and that court will then determine whether you qualify. This is usually done by examining your claims to see if it’s worth taking your appeal. Often, a single judge will enter an order granting or denying IFP status with reasons why.

IFP Status Carries Over
to the Appeal

If you were granted IFP status in the District Court proceedings for your habeas case, then that status will carry over to the Court of Appeals. But if the District Court says that an appeal cannot be taken “in good faith,” then your IFP status is finished. You will have to ask the Court of Appeals to renew your IFP status by showing that your appeal is being taken in good faith, by filing an IFP application in that court.

The term “good faith” means “any issue not frivolous.” The term “frivolous” has been defined as “none of the legal points are arguable on their merits.” Neitzke v. Williams, 490 U.S. 319 (1989). In other words, although someone might agree you wouldn’t win on appeal, it doesn’t mean your grounds for appeal would be frivolous or a waste of time.

You Don’t Have to Be Completely Broke to Qualify for IFP Status

In forma pauperis means “in the form of a poor person,” but you don’t have to be completely broke to qualify for IFP status. The rules vary widely on how much money you can have in your account before you aren’t deemed “poor” anymore, but most District Courts have a guideline in their local rules they follow in determining this amount. For example, the U.S. District Court for the Middle District of New Jersey has a local rule that if you have more than $200.00, you don’t qualify for IFP status. However, the U.S. District Court for the Middle District of Pennsylvania says that a mere $50.00 kills your chance to forgo the filing fees.

The good news is that these rules specify that this is the amount of money in your prison account but do not include any property you own or investments you have. However, there is an affidavit with the IFP application that asks about property and investments. Be honest about this information. Courts have convicted habeas petitioners for lying in their IFP affidavits about money and assets they really had and have sentenced people to extra prison time. At the very least, you will have to pay back the court fees and costs of the lawyer appointed to you, if any. See, e.g., United States v. Jenkins, 727 Fed. Appx. 732 (2d Cir. 2018)

Conclusion

A habeas appeal has many hoops to jump through. One wrong move, and even the best appeal is dead before it gets started. Understanding small details of how the appeal process works in a habeas case is vital to obtaining the relief you deserve. 

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