Circuit Rule 22-1: Certificate of Appealability (COA)

(a) General Procedures. Appeals from the district court’s denial of relief in either a 28 U.S.C. § 2254 or a § 2255 proceeding are governed by the procedures set forth in FRAP 4 and 22(b). A request for a certificate of appealability (“COA”) must first be considered by the district court. If the district court grants a COA, that court shall state which issue or issues satisfy the standard set forth in 28 U.S.C. § 2253(c)(2). The court of appeals will not act on a request for a COA if the district court has not ruled first. (Rev. 1/1/04; 12/1/09; 12/1/18)

(b) District Court Records. If the district court denies a COA in full in a § 2254 proceeding and the district court record cannot be accessed electronically, the district court clerk shall forward the entire record to the court of appeals. If the district court denies a COA in full in a § 2255 proceeding and the district court record cannot be accessed electronically, the district court clerk shall forward that portion of the record beginning with the filing of the § 2255 motion. (Rev. 1/1/04; 12/1/09)

(c) Grant in Part or in Full by District Court. If the district court grants a COA as to any or all issues, a briefing schedule will be established by the court of appeals at case opening and appellant shall brief only those issues certified or otherwise proceed according to section (e), below. (Rev. 1/1/04; 3/11/04; 12/1/18)

(d) Denial in Full by District Court. If the district court denies a COA as to all issues, appellant may file a request for a COA that complies with Circuit Rule 27-1 in the court of appeals within 35 days of the filing of a notice of appeal or amended notice of appeal, or the district court’s denial of a COA in full, whichever is later. The notice of appeal must be timely filed pursuant to 28 U.S.C. § 2107 and FRAP 4(a), regardless of whether appellant files a request for COA. If appellant does not file a COA request with the court of appeals after the district court denies a COA in full, the court of appeals will deem the notice of appeal to constitute a request for a COA. (Rev. 1/1/04; 12/1/09; 12/1/18; 12/1/25)

If appellant files a request for a COA with the court of appeals, appellee may, and in capital cases with no pending execution date shall, file a response to the request for a COA within 35 days from service of the COA request. In capital cases where an execution date is scheduled and no stay is in place, appellee shall file a response as soon as practicable after the date appellant’s request is served or, if no request is filed, as soon as practicable after the district court’s entry of its order denying a COA. (New 1/1/04; Rev. 12/1/09;12/1/18)

If, after the district court has denied a COA in full, the court of appeals also denies a COA in full, appellant, pursuant to Circuit Rule 27-10, may file a motion for reconsideration. (New 1/1/04; Rev. 12/1/18)

When the court of appeals grants a COA in part and denies a COA in part, a briefing schedule will be established and no motion for reconsideration will be entertained. Appellant shall brief only those issues certified or otherwise proceed according to section (e), below. (New 1/1/04; Rev. 12/1/18)

(e) Briefing Uncertified Issues. Appellants shall brief only issues certified by the district court or the court of appeals, except that, if an appellant concludes during the course of preparing the opening brief, that an uncertified issue should be discussed in the brief, the appellant shall first brief all certified issues under the heading, “Certified Issues,” and then, in the same brief, shall discuss any uncertified issues under the heading, “Uncertified Issues.” Uncertified issues raised and designated in this manner will be construed as a motion to expand the COA and will be addressed by the merits panel to such extent as it deems appropriate. Except in the extraordinary case, the Court will not permit a longer brief to accommodate the uncertified issues. (New 1/1/04; Rev. 7/1/16; 12/1/18)

(f) Response to Uncertified Issues. Appellee may, but need not, address any uncertified issues in its responsive brief. The Court will afford appellee an opportunity to respond before relief is granted on any previously uncertified issue. (New 1/1/04; Rev. 12/1/18)

Circuit Advisory Committee Note to Rule 22-1

The Court may decline to address uncertified issues if they are not raised and designated as required by this Rule. (Rev. 1/1/04; 12/1/18)