28 USC 2253: When a COA Is Required and How to Request One

A Certificate of Appealability is the permission a prisoner must obtain before a federal court of appeals will hear an appeal from the denial of a habeas corpus petition under 28 U.S.C. 2254 or a motion under 28 U.S.C. 2255. Without one, the circuit court will not touch the case. To get it, you have to make a “substantial showing of the denial of a constitutional right,” which in practice means convincing a judge that reasonable jurists could disagree with how the district court resolved your claim.¹

Who Needs a COA

The requirement in 28 U.S.C. 2253(c)(1) applies to two groups of petitioners:

State prisoners appealing the denial of a habeas petition under 28 U.S.C. 2254, which challenges a state conviction or sentence as violating the Constitution or federal law.²
Federal prisoners appealing the denial of a motion under 28 U.S.C. 2255, which attacks a federal sentence on constitutional, jurisdictional, or statutory grounds.³

The requirement applies even when the district court never reached the merits. A petition thrown out for missing the one-year filing deadline still needs a COA before you can appeal, though the standard for getting one in that situation has an extra step.⁴

When a COA Is Not Required

The gate only swings one way. Under Federal Rule of Appellate Procedure 22, the government does not need a COA to appeal a habeas ruling that went in favor of a prisoner.⁵ The point of the requirement is to filter weak prisoner appeals, not to limit the government.

Sentence-reduction motions under 18 U.S.C. 3582(c), including compassionate release requests, also fall outside 2253. They are not habeas proceedings, so a prisoner whose 3582(c) motion is denied can appeal directly.

The Standard: Substantial Showing of the Denial of a Constitutional Right

The statutory phrase reads as a high bar, but the Supreme Court has treated it as a threshold. In Barefoot v. Estelle, the Court explained that a petitioner does not have to show they will win. They must show the issues are “debatable among jurists of reason” or “deserve encouragement to proceed further.”⁶ Congress carried that standard into the Antiterrorism and Effective Death Penalty Act of 1996.

Miller-El v. Cockrell reinforced the limit. The court of appeals is not supposed to conduct a full merits review at the COA stage. It asks only whether reasonable jurists could disagree with the district court’s decision or whether the issues are adequate to warrant further proceedings.⁷ Lower courts frequently blur this line and effectively decide the merits when deciding whether to grant a COA.

The Dual Test for Procedural Dismissals

When the district court dismissed your petition on a procedural ground rather than the merits, Slack v. McDaniel imposes a two-part test. You have to show both that jurists of reason would find the procedural ruling debatable, and that the underlying constitutional claim is at least arguable.⁴ Both prongs are required. A strong constitutional claim will not save you if the procedural bar is airtight, and a shaky claim will not clear the gate even if the procedural ruling looks vulnerable.

The COA Is Issue-Specific

Under 28 U.S.C. 2253(c)(3), the certificate has to identify which specific issues meet the substantial-showing standard.¹ A court might grant a COA on an ineffective-assistance claim in your petition while denying it on a Fourth Amendment claim raised alongside it. On appeal, you can brief only the certified issues.

Some circuits allow petitioners to raise uncertified issues in their briefs as an implicit request to expand the COA, but the practice is inconsistent, and most courts treat uncertified issues as waived unless the merits panel decides to take them up. If the district court certifies fewer issues than you raised, it is worth asking the circuit court to certify the rest before the briefing deadline runs.

How to Request a COA

The process starts in the district court. Under FRAP 22(b)(1), a habeas or 2255 petitioner must obtain the COA from either a district judge or a circuit judge, and in practice the district court usually rules on the COA in the same order that denies the petition.⁵

If the district judge refuses, you can ask the circuit court. Deadlines for that request vary by circuit. The Second Circuit, for example, requires the request within 28 days of the district court’s COA denial or the notice of appeal, whichever comes later.⁸ Check your circuit’s local rule.

The notice of appeal itself runs on its own clock. Under FRAP 4(a)(1), you have 30 days from the denial of the petition in most cases, or 60 days when the United States is a party. Miss that deadline and the right to appeal is gone, COA or not.

What Happens if the COA Is Denied

A denial closes the door to appellate review, and reopening it is hard. If the circuit court denies the COA, you can file a petition for rehearing or rehearing en banc, usually within 14 days. A rehearing-en-banc petition must be filed in the same document as the petition for panel rehearing. These succeed only in unusual circumstances, such as when the panel overlooked a material issue or the decision conflicts with a Supreme Court or sister-circuit ruling.

After that, a petition for certiorari to the Supreme Court is possible but rarely granted. The Court has stepped in when circuits applied the wrong screening test. In Tennard v. Dretke, it reversed the Fifth Circuit for using an overly restrictive standard and reaffirmed that the question is simply whether reasonable jurists would find the district court’s assessment debatable or wrong.⁹ In Buck v. Davis, it reversed a COA denial where the Fifth Circuit had dismissed a claim of racial bias in sentencing.¹⁰ Those cases are outliers. For most petitioners, a circuit-level denial ends the appeal.

A COA Is Not the Same as Permission to File a Successive Petition

Petitioners sometimes confuse the COA with the authorization needed to file a second or successive habeas petition. They are separate gates.

Under 28 U.S.C. 2244(b)(3), a prisoner whose first habeas petition has already been decided on the merits must get permission from the circuit court before filing another. A three-judge panel decides, and must act within 30 days.¹¹ The petitioner has to make a prima facie showing that the new claim rests on either a new rule of constitutional law the Supreme Court has made retroactive on collateral review, or newly discovered evidence that would prove innocence by clear and convincing evidence.

Unlike a COA denial, the circuit court’s ruling on a successive-petition request is not appealable and cannot be challenged through rehearing or certiorari.¹¹ And if authorization is granted and the successive petition is then denied on the merits, you still need a COA to appeal that denial. Both gates operate independently.

The One-Year Deadline That Comes First

None of this matters if the underlying petition is untimely. AEDPA gives both state and federal prisoners one year to file.

For state prisoners under 2254, the year usually runs from the date the conviction becomes final, meaning after direct appeal ends or the time for seeking further review expires. It can start later if a government-created impediment prevented filing, if the claim relies on a newly recognized constitutional right, or if the factual basis was discovered later through reasonable diligence.¹¹

For federal prisoners under 2255, an identical one-year clock runs from the date the conviction becomes final, with the same alternate starting points.³ Missing the deadline is one of the most common reasons habeas petitions get dismissed, and appealing that dismissal is exactly the situation where the Slack dual-requirement test applies.

1
Office of the Law Revision Counsel. 28 U.S.C. 2253 – Appeal
2
Office of the Law Revision Counsel. 28 U.S. Code 2254 – State Custody; Remedies in Federal Courts
3
Office of the Law Revision Counsel. 28 U.S.C. 2255 – Federal Custody; Remedies on Motion Attacking Sentence
4
Justia U.S. Supreme Court Center. Slack v. McDaniel, 529 U.S. 473 (2000)
5
Legal Information Institute. Rule 22 – Habeas Corpus and Section 2255 Proceedings
6
Justia U.S. Supreme Court Center. Barefoot v. Estelle, 463 U.S. 880 (1983)
7
Justia U.S. Supreme Court Center. Miller-El v. Cockrell, 537 U.S. 322 (2003)
8
United States Court of Appeals for the Second Circuit. Local Rule 22.1 Certificate Of Appealability
9
Justia U.S. Supreme Court Center. Tennard v. Dretke, 542 U.S. 274 (2004)
10
Justia U.S. Supreme Court Center. Buck v. Davis, 580 U.S. ___ (2017)
11
Office of the Law Revision Counsel. 28 U.S.C. 2244 – Finality of Determination