ROBERT JINX CASTRO, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.
No. 01-2353
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
November 13, 2002
2002 FED App. 0394P (6th Cir.)
Before: KENNEDY and MOORE, Circuit Judges; DOWD, District Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. File Name: 02a0394p.06
PER CURIAM. Robert Jinx Castro, a pro se federal prisoner, seeks to appeal a district court judgment denying his
Castro filed a timely notice of appeal on September 28, 2001. According to the Federal Rules of Appellate Procedure, “[i]f an applicant files a notice of appeal, the district judge who rendered the judgment must either issue a certificate of appealability or state why a certificate should not issue.”
We have learned that the district judge is reluctant to issue a COA ruling because it is his policy to “decide whether to issue a COA only after a petitioner moves for such relief.” Brown v. United States, 187 F. Supp. 2d 887, 891 (E.D. Mich. 2002). In light of the district judge‘s reasoning in Brown, we can infer that he declined to issue or deny a COA in this case for three reasons. First, the district judge interprets Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001), as suggesting that district courts should wait for a petitioner to apply for a COA before issuing a COA ruling. Brown, 187 F. Supp. 2d at 890. Second, he believes that “the plain language of Rule 22(b)(1) shows that a petitioner must (1) move for a COA and (2) file a notice of appeal before [the district court] is required to decide whether a COA shall issue.” Id. Finally, the district judge reasons “that prematurely ruling on a COA would effectively deprive many petitioners of the opportunity to prove that they are entitled to a COA” under the standard announced in Barefoot v. Estelle, 463 U.S. 880 (1983). Brown, 187 F. Supp. 2d at 890. Upon review, we conclude that the district court‘s justifications for refusing to issue a COA ruling before a habeas petitioner applies for a COA are unpersuasive.
The district court‘s second argument for postponing COA determinations incorrectly interprets Rule 22(b)(1) to require that a petitioner both move for a COA and file a notice of appeal before the court rules on the COA. When interpreting statutory language, a court should interpret the statute as a
The language of Rule 22 clearly requires that the district judge issue a COA ruling whenever an applicant files a notice of appeal. The district court believes that only someone who has moved for a COA can be an “applicant” filing a notice of appeal under Rule 22. The rules of statutory construction, however, lead us to a different interpretation of Rule 22(b)(1). In the context of Rule 22, the word “applicant” refers to someone who has applied for a writ of habeas corpus—not someone who has applied for a COA. Rule 22(b)(1) provides, in relevant part, “[i]f an applicant files a notice of appeal, the district judge who rendered the judgment must either issue a certificate of appealability or state why a certificate should not issue.” This plainly requires a district court to issue a COA ruling when an applicant for a writ of habeas corpus files a notice of appeal. See, e.g., Forbes v. United States, 1999 WL 1133362 at *1 (S.D.N.Y. Dec. 10, 1999) (district court properly construing notice of appeal as a request for a COA). Furthermore, throughout Rule 22(a) and (b), “applicant” refers to someone who has applied for a writ of habeas corpus, not someone who has applied for a COA. Rule 22(a) also repeatedly uses the word “application” to refer to an application for a writ of habeas corpus, and not to an application for a COA. Thus, the most coherent and consistent interpretation of the word “applicant” is someone
Finally, we also reject the district court‘s argument that ruling on a COA before a petitioner formally applies for one effectively deprives the petitioner of the opportunity to show his or her entitlement to a COA. A petitioner is entitled to a COA only if he “has made a substantial showing of the denial of a constitutional right.”
To obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that, under Barefoot, includes showing that reasonable jurists could debate whether (or for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were “adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). The district court suggests that because petitioners rarely address the Barefoot standard for appellate review in their habeas proceedings in district court, a district court may deprive petitioners of their opportunity to address the standard for a COA by ruling on a COA before a petitioner applies for one. Brown, 187 F. Supp. 2d at 890. It is of course possible as well that under the framework mandated by Rule 22(b)(1), a petitioner will file a notice of appeal unaccompanied by a motion for a COA, yet Rule 22(b)(1) requires the district judge to decide whether to issue a COA upon the filing of the notice of appeal. In either situation, should the district judge deny a COA, the petitioner could seek reconsideration of that decision, accompanied by a motion and brief in support of a COA. Moreover, Rule 22(b)(1) further provides that “[i]f the district judge has denied the certificate, the applicant may request a circuit judge to issue the certificate.” Finally, Rule 22(b)(2) provides that “[i]f no express request for a certificate
Therefore, we reject as unpersuasive the district judge‘s arguments in support of his policy “to decide whether to issue a COA only after a petitioner moves for such relief.” Brown, 187 F. Supp. 2d at 891. Rule 22(b)(1) requires that the district court issue or deny a COA in accordance with the principles of
ROBERT JINX CASTRO, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.
No. 01-2353
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
CONCURRENCE
KENNEDY, Circuit Judge, concurring. I concur in the panel‘s opinion but write separately to acknowledge the disadvantages that may result from following the procedure our opinion suggests.
First, the issuance of a certificate of appealability contemporaneously with the decision on the writ may result in appeal when otherwise no appeal would have been filed. Second, petitioner may have otherwise requested a COA on only one or two of the issues. Without such a request, the district judge must deal with all the issues raised in the petition for the writ perhaps causing the judge unnecessary work. Third, while the petitioner may move for reconsideration where the COA is entered with the opinion, the burden on the petitioner to persuade the judge to change a ruling is greater than the burden to persuade the judge to adopt that ruling as an initial matter.
However, I concur because
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green
Clerk