What Should I Do if My Federal Habeas is Denied?

The following article outlines how one can appeal a federal trial court’s denial of a petition for a writ of habeas corpus.  However, it is first and foremost important to read the court’s reasons for denying the petition.  Was the court correct?  If there is something that can be cured, such as exhaustion of state court remedies, can that be done?

However, if one believes the federal trial court made a legal error, perhaps in abusing its discretion by not considering something, or, one believes, misinterpreted legal authority, then an appeal to a higher court may be appropriate (keep in mind that to appeal such a denial, one must obtain a certificate of appealability, as is discussed further below).

If this is appropriate, to appeal from a denial of a federal habeas petition, a petitioner must file a notice of appeal in the federal district court within 30 days after the entry of the district court’s final order. Federal Rules of Appellate Procedure, rule 4(a); 28 U.S.C. § 2107; Browder v. Illinois Dept. of Corrections (1978) 434 U.S. 257, 265, 98 S. Ct. 556, 54 L. Ed. 2d 521.  As with other federal habeas documents, a pro se notice of appeal is deemed to be “filed” when it is delivered to prison authorities for mailing. Houston v. Lack (1988) 487 U.S. 266, 270, 108 S. Ct. 2379; 101 L. Ed. 245; Caldwell v. Amend (9th Cir. 1994) 30 F. 3d 1199, 1201.

A petitioner who cannot meet the 30-day deadline may request an extension of time or permission to file a late notice of appeal.  The request must be made within 60 days after the district court order.  The petitioner must show that failure to meet the filing deadline was due to excusable neglect or good cause. Federal Rules of Appellate Procedure, rule 4(a)(5); Browder, supra, at 265; Pratt v. McCarthy (9th Cir. 1988) 850 F. 2d 590, 592-593; Malone v. Avenenti (9th Cir. 1988) 850 F. 2d 569, 571; Felix v. Cardwell (9th Cir. 1976) 545 F. 2d 92, 93; Mendez v. Knowles (9th Cir. 2009) 556 F. 3d 757, 765 (petitioner allowed to file a late notice of appeal where attorney put the notice in the mail several days before the deadline, but the notice arrived at the court, which was just across town, one day late). 

"Excusable neglect" for failure to timely file notice of appeal is where the failure is due to negligence is excusable taking into account all relevant circumstances. Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership (1993) 507 U.S. 380, 395, 113 S. Ct. 1489; 123 L. Ed. 2d 74.  If a person fails to timely file a notice of appeal because of abandonment by an attorney or an error by a court, they can ask the district court to vacate and re-enter the judgment under the “catch-all” clause of Rule 60(b)(6) of the Federal Rules of Civil Procedure. Washington v. Ryan (9th Cir. 2016) 833 F. 3d 1087; Mackey v. Hoffman (9th Cir. 2012) 682 F. 3d 1247, 1253.

The time for filing a notice of appeal can be extended no longer than the sixtieth day after the district court judgment was entered, or the tenth day following an order granting an extension of time. Federal Rules of Appellate Procedure, rule 4(a)(5)(B).

The notice of appeal must identify the name and court number of the case being appealed, the name of the person bringing the appeal, and the court in which the appeal will be filed (for California cases, this is the Ninth Circuit Court of Appeals). Federal Rules of Appellate Procedure, rule 3(c)(1).

With the notice of appeal, the petitioner must either pay filing and docketing fees (currently a total of $255) or get permission to proceed in forma pauperis. 28 U.S.C. § 1913 (docket fee); 28 U.S.C. § 1915(a) (in forma pauperis status); 28 U.S.C. § 1917 (filing fee). 

A petitioner who has already been granted permission to proceed in forma pauperis for the habeas petition does not have to file a new in forma pauperis request for the appeal, unless there have been significant changes in the petitioner’s financial status. Federal Rules of Appellate Procedure, rule 24(a)(3).

In addition to filing a notice of appeal, a petitioner who wants to appeal must obtain a certificate of appealability (COA). 28 U.S.C. § 2253(c).  

The district court must grant or deny a COA when it enters a final order in the habeas case. Before making the order, the court may ask the parties to submit briefs on whether a certificate should be issued. Federal Rules of Habeas Corpus, rule 11(a).

If the district court refuses to issue a COA, the petitioner should file a request for a COA in the Ninth Circuit Court of Appeals. Federal Rules of Appellate Procedure, rule 22(b). The COA request may be decided by a single judge or a panel of judges. Santiago Salgado v. Garcia (9th Cir. 2004) 384 F. 3d 769, 772.  The court can deny or grant a COA on an issue-by-issue basis. Thus, the petitioner must specifically ask for a COA for each issue being appealed. 28 U.S.C. § 2253(c). People with life sentences who are challenging parole suitability denials or reversals are not exempt from the COA requirement. Hayward v. Marshall (9th Cir. 2010) 603 F. 3d 546, 553 (overruled on other grounds).  A court of appeals judge’s failure to indicate on the COA which specific issues are appealable does not deprive the court of the power to decide the appeal. Gonzalez v. Thaler (2012) 565 U.S. 134, 132 S. Ct. 641; 181 L. Ed. 2d 619.

To get a COA for claims that were denied on the merits, the petitioner must make a substantial showing that a constitutional right has been denied, and must state the facts supporting the claims. 28 U.S.C. § 2253(c); Federal Rules of Appellate Procedure, rule 22(b).

To get a COA for claims that were denied on procedural grounds, the person must show that (1) reasonable jurists could debate whether the district court was correct in its procedural ruling, and (2) reasonable jurists could debate whether the habeas petition stated a valid claim that a constitutional right was denied. Slack v. McDaniel (2000) 529 U.S. 473, 483, 120 S. Ct. 1597; 146 L. Ed. 2d 542.

This article would not be possible without reference to The California Prison and Parole Law Handbook by the Prison Law Office.  We thank them for their wonderful treatise.