Certificate Of Appealability Standard Not The Same As Merits Determination, Supreme Court Holds

A certificate of appealability is required to appeal the denial of federal habeas relief. According to federal statute, a certificate of appealability may only be granted “if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In some cases, prisoners can demonstrate probable success on the merits of ineffective assistance to claim before granting a certificate of appealability.The Supreme Court has made clear in prior cases that a certificate of appealability should issue if “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U. S. 322, 327 (2003). “Full consideration of the factual or legal bases adduced in support of the claims” is prohibited. Id. at 336.

Despite the lax standard for a certificate of appealability, federal courts have near uniformly required prisoners to show probable success on the merits of any claim before granting a certificate of appealability.

Because of this, the Supreme Court in Buck v. Davis was again asked to clarify the standard for issuing a certificate of appealability. Buck v. Davis, No. 15-8049 (2017).

Buck, a Texas prisoner on death row, previously sought federal habeas relief. After the Supreme Court decided Martinez v. Ryan, 566 U. S. 1 (2012), and Trevino v. Thaler, 569 U. S. ___ (2013), Buck moved for relief from judgment in his federal habeas proceeding pursuant to Fed. R. Civ. P. 60(b)(6).

Buck argued that he was entitled to relief under Rule 60(b)(6) because his state post-conviction attorney failed to raise a claim of ineffective assistance of trial counsel. During the penalty phase of Buck’s trial for capital murder, an expert was called by the defense who testified that Buck’s future dangerousness was increased because he was “black.” Unsurprisingly, the jury recommended a death sentence. Buck argued that it was ineffective assistance for his attorney to have elicited this testimony before the jury.

Martinez and Trevino opened the door for Buck to seek Rule 60 relief. In Martinez the Court held that “a prisoner may establish cause for procedural default if (1) the state courts did not appoint counsel in the initial-review collateral proceeding, or appointed counsel in that proceeding . . . was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 (1984); and (2) the underlying . . . claim is a substantial one, which is to say that . . . the claim has some merit.” Buck, slip op. at 9.

Martinez and Trevino are only applicable in jurisdictions where the prisoner is required or effectively required to raise a claim of ineffective assistance of counsel for the first time in a post-conviction proceeding. The federal system is an example of the latter since claims of ineffective assistance are more appropriately reserved for a 28 U.S.C. § 2255 motion. Massaro v. United States, 538 U.S. 500 (2003).

The Fifth Circuit in considering whether to grant Buck a certificate of appealability looked at whether he had in fact shown “extraordinary circumstances” warranting Rule 60 relief. The Supreme Court held this was improper.

Chief Justice Roberts, writing for the Court, held that the certificate of appealability “inquiry, we have emphasized, is not coextensive with a merits analysis.” According to the Chief Justice, “the question for the Fifth Circuit was not whether Buck had ‘shown extraordinary circumstances’ … Those are ultimate merits determinations the panel should not have reached. We reiterate what we have said before: A ‘court of appeals should limit its examination [at the COA stage] to a threshold inquiry into the underlying merit of the claims,’ and ask ‘only if the District Court’s decision was debatable.’”

Further, the Chief Justice explained:

That a prisoner has failed to make the ultimate showing that his claim is meritorious does not logically mean he failed to make a preliminary showing that his claim was debatable. Thus, when a reviewing court (like the Fifth Circuit here) inverts the statutory order of operations and ‘first decides the merits of an appeal, . . . then justifies its denial of a COA based on its adjudication of the actual merits,’ it has placed too heavy a burden on the prisoner at the COA stage. Miller-El, 537 U. S., at 336–337. Miller-El flatly prohibits such a departure from the procedure prescribed by §2253.

The statute sets forth a two-step process: an initial determination whether a claim is reasonably debatable, and then if it is an appeal in the normal course. We do not mean to specify what procedures may be appropriate in every case. But whatever procedures are employed at the COA stage should be consonant with the limited nature of the inquiry.

Next, the Court turned to whether the court had erred in denying Buck Rule 60 relief. Relying on Trevino and other factors, the Court concluded that Buck had shown extraordinary circumstances warranting Rule 60 relief. “Our law punishes people for what they do, not who they are. Dispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle,” the Court held. Thus, it was ineffective assistance for Buck’s trial counsel to have introduced the racially-based testimony during the penalty phase of the trial, and equally ineffective assistance for Buck’s state post-conviction counsel to have failed to raise this claim in his state post-conviction proceedings. Accordingly, the judgment of the Fifth Circuit was reversed and the case was remanded for further proceedings.

The Martinez and Trevino cases are a new, narrow way for federal prisoners to potentially re-open their federal habeas proceedings, or seek 28 U.S.C. § 2241 relief, when because of the absence of counsel, or due to ineffective § 2255 counsel, a substantial claim of ineffective assistance was not raised in an initial § 2255 motion.

About Brandon Sample

Brandon Sample is an attorney, author, and criminal justice reform activist. Brandon’s law practice is focused on federal criminal defense, federal appeals, federal post-conviction relief, federal civil rights litigation, federal administrative law, and the Freedom of Information Act (FOIA).

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