HABEAS CORPUS PROCEEDINGS

22.1 Necessity of Certificate of Appealability (a) When a certificate of appealability is required, a formal application must be filed with the court of appeals, but the court may deem a document filed by a habeas corpus petitioner that discloses the intent to obtain appellate review to be an application for a certificate of appealability, regardless of its title or form. If an application is not filed with the notice of appeal, the appellant may file and serve an application within 21 days of either the docketing of the appeal in the court of appeals or of the entry of the order of the district court denying a certificate, whichever is later. The appellees may, but need not unless directed by the court, file a memorandum in opposition to the granting of a certificate, within 14 days of service of the application. The appellant may, but need not, file a reply within 10 days of service of the response.

The length and form of any application, response, or reply must conform to the requirements of FRAP 27 governing motions. (b) If the district court grants a certificate of appealability as to only some issues, the court of appeals will not consider uncertified issues unless appellant first seeks, and the court of appeals grants, certification of additional issues. Appellant desiring certification of additional issues must file, in the court of appeals, a separate motion for additional certification, along with a statement of the reasons why a certificate should be granted as to any issue(s) within 21 days of the docketing of the appeal in the court of appeals. Appellees may file a memorandum in opposition within 14 days of service of the application.

Appellant’s reply, if any, must be filed within 10 days of the service of the response. The length and form of any application, response, or reply, must conform to the requirements of Rule 27, FRAP governing motions. If granted, the order must be included in volume one of the appendix, which may be attached to the appellant’s brief. If the motions panel denies the motion to certify additional issues, the parties should brief only the issues certified unless the merits panel directs briefing of any additional issues.

Notwithstanding the above, the merits panel may expand the certificate of appealability as required in the circumstances of a particular case. (c) In a multi-issue case if the district court grants a certificate of appealability, but does not specify on which issues the certificate is granted as required by 28 U.S.C. § 2253(c)(3), the clerk will remand the case for specification of the issues. (d) A certificate of appealability is required if a petitioner files a cross-appeal. The petitioner should apply to the district court for a certificate in the first instance.

Source: 1988 Court Rule 13.1 Cross-references: 28 U.S.C. § 2253; FRAP 3, 22; 3d Cir. L.A.R. 3.4 Committee Comments: The portions of prior Court Rule 13 that were repetitive of FRAP 22 were deleted in 1995; otherwise no substantive change from prior Court Rule 13.1 is intended. Technical changes were made to conform to FRAP 27 in 1997. The response time was Table of Contents 10 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 lengthened to permit litigants sufficient time to file an application or response.

22.2 Statement of Reasons for Certificate of Appealability At the time a final order denying a petition under 28 U.S.C. § 2254 or § 2255 is issued, the district judge will make a determination as to whether a certificate of appealability should issue. If the district judge issues a certificate, the judge must state the specific issue or issues that satisfy the criteria of 28 U.S.C. § 2253. If an order denying a petition under § 2254 or § 2255 is accompanied by an opinion or a magistrate judge’s report, it is sufficient if the order denying the certificate references the opinion or report. If the district judge has not made a determination as to whether to issue a certificate of appealability by the time of the docketing of the appeal, the clerk will enter an order remanding the case to the district court for a prompt determination as to whether a certificate should issue.

Source: FRAP 22 Cross-references: 28 U.S.C. §§ 2253, 2254, 2255; FRAP 22 Committee Comments: Technical changes were made in 1997 to conform to the Antiterrorism and Effective Death Penalty Act. 22.3 Review of Application for Certificate of Appealability An application for a certificate of appealability will be referred to a panel of three judges. If all the judges on the panel conclude that the certificate should not issue, the certificate will be denied, but if any judge of the panel is of the opinion that the applicant has made the showing required by 28 U.S.C. § 2253, the certificate will issue. Source: FRAP 22 Cross-references: 28 U.S.C. § 2253; FRAP 22 Committee Comments: Technical changes were made in 1997 to conform to the Antiterrorism and Effective Death Penalty Act.

22.4 Death Penalty Cases The provisions of 3d Cir. L.A.R. Misc. 111.0 govern all appeals from the grant or denial of a petition for writ of habeas corpus or original habeas corpus proceedings challenging a conviction in which a sentence of death has been imposed. Source: None Cross-references: FRAP 8, 22; 3d Cir.

L.A.R. 8.0, Misc. 111.0 Table of Contents 11 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 Committee Comments: New provision in 1997. To the extent consistent with FRAP and applicable, local procedure in all death penalty proceedings will be governed by 3d Cir. L.A.R. Misc.

111.0. 22.5 Application for Authorization to File a Second or Successive Petition Under 28 U.S.C. § 2254 or § 2255 (a) Forms for filing an application to file a second or successive petition under 28 U.S.C. § 2254 or § 2255 are available from the clerk. If the form application is not used, the application must contain the information requested in the form. The application must be accompanied by: (1) the proposed new § 2254 or § 2255 petition; (2) copies of all prior § 2254 or § 2255 petitions; (3) copies of the docket entries in all prior § 2254 or § 2255 proceedings; (4) copies of all magistrate judge’s reports, district court opinions and orders disposing of the prior petitions; and (5) any other relevant documents.

(b) The application may be accompanied by a memorandum, not exceeding 20 pages, clearly stating how the standards of § 2244(b) and/or § 2255 are satisfied. (c) The movant must serve a copy of the application for authorization to file a second or successive petition and all accompanying attachments on the appropriate respondent. (d) Any response to the application must be filed within 7 days of the filing of the application with the clerk. (e) If the court determines that the motion and accompanying materials are not sufficiently complete to assess the motion, the court may deny the motion with or without prejudice to refiling or may in its discretion treat the motion as lodged, the filing being deemed complete when the deficiency is remedied.

(f) The clerk will transmit a copy of any order granting authorization to file a second or successive petition to the appropriate district court together with a copy of the petition. (g) No filing fee is required for an application to file a second or successive petition. If the application is granted, the filing of the petition in the district court will be subject to the requirements of 28 U.S.C. § 1915(a). (h) If the district court enters an order transferring to the court of appeals an application to file a second or successive petition or a § 2254 or § 2255 petition that the district court deems to be a second or successive petition requiring authorization, the clerk of the district court must Table of Contents 12 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 promptly certify the record to the court of appeals as provided in L.A.R. 11.2.

The record must include the documents listed in part (a)(1) through (5) of this rule. The clerk of the district court must transmit copies of its order of transfer and any necessary documents to the appropriate respondent. (i) If a case transferred by the district court does not contain a statement by the applicant as to how the standards of § 2244(b) or § 2255 are satisfied, the clerk may direct the applicant to file a memorandum clearly stating how the statutory standards are met. Failure to file a memorandum as directed will result in the dismissal of the case by the clerk without further notice.

If the applicant files a memorandum as directed, the time prescribed in § 2244(b)(3)(D) for deciding the application will run from the date the memorandum is filed. (j) If an appeal is taken in a case in which the district court issued an order denying a petition under § 2254 or § 2255 on the grounds that it is a second or successive petition that requires authorization under § 2244, the record on appeal certified to this court must include the documents listed in part (a)(1) through (5) of this rule. Source: FRAP 22 Cross-references: 28 U.S.C. §§ 2244, 2253, 2254, 2255; FRAP 22 Committee Comments: Technical changes were made in 1997 to conform to the Antiterrorism and Effective Death Penalty Act. Revisions were made in 2008 to accommodate electronic records.