Applications for certificates of appealability and the Supreme Court's 'obligatory' jurisdiction.

• Date: 22 March 2003
• Author: Newton, Brent E.

1. INTRODUCTION

   Since 1925, with the passage of the Judges' Bill, (1) Congress increasingly has afforded the Supreme Court unfettered discretion to decide whichever cases it chooses. (2) The Court's "discretionary" docket includes almost all of the cases coming before it today, (3) while its "mandatory" or "obligatory" (4) docket now includes only a select few types of cases. (5)

   The Court is not required to rule on the merits of a case within its discretionary jurisdiction. Rather, the Court, as an exercise of its discretion, simply may refuse to hear the appeal, even if the litigant seeking review has raised a clearly meritorious claim for relief. (6) The overwhelming majority of cases filed with the Court are within its discretionary docket and, in an overwhelming majority of those cases, the Court summarily refuses to exercise its discretion to review the merits. (7)

   Although the Supreme Court has never addressed the issue, it certainly appears that the Court treats an application for a certificate of appealability (COA) under 28 U.S.C. [section] 2253 in a federal habeas corpus case as falling within the Court's discretionary jurisdiction. (8) As discussed below, the Court's apparent treatment of COA applications in this manner is erroneous under the current statutory scheme. The Court, or at least the single Circuit Justice to whom a COA application is directed, has a legal obligation to role on the merits of a COA application, applying the same legal standard that governs district and circuit judges in COA cases. That legal standard--commonly referred to as the "Barefoot standard" (9)--requires a relatively minimal showing by a petitioner in order to authorize an appeal following a district court's denial of habeas relief. (10)

2. CERTIFICATES OF PROBABLE CAUSE AND APPEALABILITY IN FEDERAL HABEAS CASES

   Beginning in 1908, a state prisoner wishing to appeal a federal trial court's denial of a petition for a writ of federal habeas under 28 U.S.C. [section] 2254 was required to obtain a certificate of probable cause (CPC) authorizing an appeal. (11) Congress added the CPC requirement because of delays in state capital cases caused by perceived "frivolous" appeals in federal habeas cases. (12) Without a CPC, no federal appellate jurisdiction existed. (13)

   At the time of the 1908 statute, federal circuit courts did not possess appellate jurisdiction over a lower court's denial of a habeas petition and, instead, an appeal of the denial of habeas relief went directly to the Supreme Court. (14) Consistent with such a direct appeal to the Supreme Court, the 1908 CPC statute not only authorized a federal trial judge to grant or deny an application for a CPC but also authorized a "justice of the Supreme Court" to do so. (15) In 1925, Congress expanded federal circuit courts' appellate jurisdiction, which included authorizing appeals in habeas cases from a district court to a circuit court. (16) The CPC statute was amended accordingly to provide that a circuit judge, like a district judge, could issue a CPC; the amended statute logically deleted the reference to a Supreme Court Justice's having authority to grant or deny a CPC. (17)

   In 1948, Congress again amended the CPC statute--recodified in the current statute, 28 U.S.C. [section] 2253--and inexplicably resurrected the 1908 statute's provision that a Supreme Court Justice possessed the authority to rule on a CPC application (in addition to the authority of a district or circuit judge to do so). (18) The legislative history of section 2253 does not shed any light on why Congress decided again to include Supreme Court Justices among those having authority to grant or deny a CPC. (19)

   In 1996, as part of the Antiterrorism and Effective Death Penalty Act (AEDPA), Congress amended section 2253 and made sweeping changes in the federal habeas statutory scheme. (20) Congress renamed the CPC a "certificate of appealability" (COA), but continued to give Supreme Court Justices the authority to grant or deny one. (21) It also for the first time extended the COA requirement to federal prisoners who file post-conviction motions under 28 U.S.C. [section] 2255. (22)

   The COA standard set forth in the amended version of section 2253 requires a prisoner to make "a substantial showing of the denial of a constitutional right" (23) before an appeal will be authorized. In Slack v. McDaniel, (24) the Supreme Court held that this statutory language essentially codified the judicial gloss that the Court had given the former CPC statute in Barefoot v. Estelle. (25) The Barefoot standard only requires that the legal issue sought to be raised on appeal "be debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further." (26) It does not require the habeas petitioner to demonstrate a likelihood that he ultimately will prevail on appeal. (27)

   Recently, in Miller-El v. Cockrell, (28) the Supreme Court made clear that the Barefoot standard is not difficult for a habeas petitioner to meet. All that is required is for at least one claim raised by the petitioner to be reasonably "debatable" under the AEDPA's standards. As the Court stated:

   We look to the District Court's application of AEDPA to petitioner's constitutional claims and ask whether the resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.... [A] COA does not require a showing that the appeal will succeed. A prisoner seeking a COA must wove "something more than the absence of frivolity" or the existence of mere "good faith" on his or her part.... We do not require petitioner to prove, before the issuance of a COA, that some jurists would grant the petition for habeas corpus. Indeed, 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 the petitioner will not prevail. The question is the debatability of the underlying constitutional claim, not the resolution of that debate. (29)

3. COA APPLICATIONS FILED WITH THE SUPREME COURT OR A CIRCUIT JUSTICE

   The plain language of 28 U.S.C. [section] 2253(c)(1) and the corresponding procedural rule, Federal Rule of Appellate Procedure 22(b)(1), empower a single Circuit Justice to grant a COA. (30) Although both speak of a single Circuit Justice, the Supreme Court has taken the position that section 2253 vests jurisdiction not simply in a single Justice but in the entire Court as well. (31) In death-penalty cases, a COA application addressed to a single Circuit Justice typically will be referred to the entire Court for disposition as a matter of course. (32) In non-capital cases, a COA application addressed to a single Circuit Justice typically will be ruled on in the first instance by the individual Justice in an unreported order (33) and, if "renewed" to another individual Justice pursuant to Supreme Court Rule 22, typically will be "referred" to the entire Court for disposition. (34) On rare occasions, when the full Court has summarily denied a COA application, one or more Justices have stated in dissent that they would grant a COA. (35)

   Neither section 2253 nor Rule 22 states whether a Circuit Justice (or the Court itself) has "discretionary" jurisdiction over COA applications in the same manner in which the Court has such discretionary jurisdiction over virtually every other matter that comes before it. (36) A COA is not an "extraordinary" writ or any other type of extraordinary remedy or process that the Court possesses complete discretion to grant or deny irrespective of the merits of the application. When Congress bestows jurisdiction in a federal court, as it has on the Supreme Court (or at least on a single Circuit Justice) in 28 U.S.C. [section] 2253, it is well established that there is a "strict duty" and "virtually7 unflagging obligation ... to exercise the jurisdiction given." Therefore, the Court (or at least a single Circuit Justice) appears obligated to apply the substantive Barefoot standard in the same manner in which a district or circuit judge is obligated to apply that standard. (38) There appears to be no principled basis for the exercise of a certiorari-type discretion over COA applications.

   Although no decision of the Court itself has addressed the issue of whether a COA/CPC application addressed to a Circuit Justice or the full Court falls within the Court's discretionary or obligatory dockets, decisions of individual Circuit Justices in chambers have taken contrary positions. Justice White apparently believed that he had an obligation to grant a CPC when a case raised a "substantial question," (39) while Chief Justice Rehnquist commented in 1979 that it would be an "extraordinary step" for a Circuit Justice to grant a CPC application after the lower courts have denied a CPC. (40)

   Support for the proposition that a COA application falls within a Circuit Justice's obligatory jurisdiction is found in analogous decisions concerning bail applications submitted to individual Circuit Justices. Numerous such decisions have noted that Circuit Justices must engage in an "independent determination on the merits" of a bail application, at least with respect to questions of law as opposed to questions of fact. (41) These decisions interpreted the former version of Federal Rule of Criminal Procedure 46, which provided that "the trial judge.... the court of appeals, or any judge thereof or ... a circuit justice'" (42) had authority to role on a bail application. (43) Virtually identical language appears in the current version of Federal Rule of Appellate Procedure 22(b)(1) and 28 U.S.C. [section] 2253(c)(1), which speak of the authority of a "Circuit...