Section 31.56 Appeal

• Library: Criminal Practice 2012 Supp

E. (§31.56) Appeal

Before the AEDPA, a habeas petitioner was required to obtain a certificate of probable cause to appeal the denial of a habeas petition. See Barefoot v. Estelle,463 U.S. 880 (1983) (petitioner must show a substantial denial of federal right). If a certificate of probable cause was granted, the entire case and all issues could generally be appealed.

The AEDPA requires that a certificate of appealability be obtained before appellate review of an order denying the habeas petition can be sought in cases involving a petitioner in state custody. 28 U.S.C. § 2253(c)(1). A certificate of appealability may be issued only if the petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). In addition, the certificate of appealability must indicate the specific issues to be appealed that satisfy the substantial showing of the denial of a constitutional right standard. 28 U.S.C. § 2253(c)(3)...