The Unappealing State of Certificates of Appealability
The Supreme Court has stated that “the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired.” And in the past, “Congress has demonstrated its solicitude for the vigor of the Great Writ.” But the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) nevertheless raised a series of significant procedural obstacles to habeas corpus relief. Among these obstacles, the certificate of appealability (COA) requirement has been a source of significant confusion and has engendered a number of circuit splits. This requirement dictates that a habeas petitioner must secure a COA specifying a substantial constitutional issue from a district or circuit court judge in order to appeal the denial of his habeas petition. In Gonzalez v Thaler, the Supreme Court resolved a significant COA-related circuit split over whether 28 USC § 2253(c)(3)’s requirement that the COA specify a substantial constitutional issue is jurisdictional. The Court held that while a COA itself is a jurisdictional prerequisite to appeal of the denial of a habeas petition, the other requirements contained in § 2253(c) are “mandatory but nonjurisdictional.” This holding has bred further disagreement among the circuit courts with regard to the proper treatment of defective COAs, in part because the Court left unclear the definition of the term “mandatory” in the context of nonjurisdictional requirements. This Comment proposes a solution to this disagreement and gives meaning to the phrase “mandatory but nonjurisdictional.”
One common example of a defective COA is a COA specifying only a procedural issue, such as a question of equitable tolling. Such a COA is defective because it fails to specify a constitutional issue as required by § 2253(c). Currently, the circuit courts address such defective COAs in two primary ways. When presented with defective COAs, the Third and Sixth Circuits disregard the defects and proceed to the merits of the habeas appeal, even in the face of a government objection to the defect. In contrast, the Fifth and Eleventh Circuits tend to take some type of remedial measure when faced with defective COAs. Specifically, the Fifth Circuit vacates and remands defective COAs that are properly challenged, but does not raise COA defects sua sponte. The Eleventh Circuit takes enforcement of § 2253(c)(3) a step further by raising COA defects sua sponte, in addition to responding to government challenges.