Do You Need a Certificate of Appealability to Appeal a Bail Denial?

To appeal the denial of a 2255 motion or habeas petition, you first need a certificate of appealability. But you do not need one to appeal every order in the case. In Illarramendi v. United States, the Second Circuit held that you can appeal a denial of bail without one.

Challenging your detention through habeas is hard, and this decision made one part of the process a little simpler.

What is a certificate of appealability?

A certificate of appealability, or "COA," is permission to appeal. A federal prisoner whose 2255 motion is denied cannot appeal unless a judge grants one. 28 U.S.C. § 2253(c)(1).

The COA is not how a case starts. You file your 2255 motion or habeas petition first, and the COA question comes up only after the district court rules against you.

Asking for a COA can look like a formality, but it isn't. You need to ask correctly and on time.

How to get a certificate of appealability

The district judge decides first whether to grant a COA, usually at the same time the judge denies the 2255 motion. If the judge says no, you can ask the court of appeals.

Watch the clock. Because the United States is a party, the notice of appeal from a 2255 denial is due within 60 days after the judgment is entered. See Federal Rule of Appellate Procedure 4(a)(1)(B) and Rule 11(b) of the Rules Governing Section 2255 Proceedings. Under Rule 11(a), asking the district judge to reconsider a COA denial does not extend that deadline.

To get a COA, you must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The COA must list the specific issues you can raise on appeal.

Which orders need a certificate of appealability?

The COA rule applies to final orders that decide the merits of a habeas case. That is how the Supreme Court read the statute in Harbison v. Bell, 556 U.S. 180 (2009).

So some orders fall outside the rule. A request for bail or release while your motion is pending is one example. Those side orders do not decide whether your habeas petition is granted.

The Second Circuit used to read the rule more broadly. In Grune v. Coughlin, 913 F.2d 41 (2d Cir. 1990), it held that a prisoner needed a certificate even to appeal an order denying bail during a habeas case. Illarramendi revisited that rule after Harbison.

How Illarramendi changed the rule

In Illarramendi v. United States, No. 18-35 (2d Cir. Oct. 16, 2018), the defendant had pleaded guilty to fraud and conspiracy to obstruct justice. He then filed a 2255 motion. He argued, among other things, that he had been denied the lawyer of his choice.

While that motion was pending, he asked the district court in Connecticut to release him on bail or on supervised release. The court said no, and he appealed.

The government argued he needed a COA to appeal. The Second Circuit disagreed. A bail denial does not decide the merits of the 2255 motion, so no COA is required. That clarified the Second Circuit's view of COAs after Harbison v. Bell and moved away from Grune. See Illarramendi v. United States, 906 F.3d 268 (2d Cir. 2018).

He still lost. The court sided with the government on bail. It found no substantial questions or extraordinary circumstances that would justify release.

Even so, the ruling means prisoners in the Second Circuit have one less hurdle to clear in their habeas cases.

What this means if your 2255 motion is pending

If a judge denies bail or another side request while your 2255 motion is pending, you may be able to appeal without a COA. But bail during a 2255 case is rare. Courts grant it only in unusual cases.

The decision helps prisoners who want to appeal side orders. It also shows why it helps to have a federal criminal defense lawyer review these papers. Appeal deadlines in these cases are short, and the procedural rules are strict.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.