Habeas Corpus - New Second Circuit Local Rules

As reported today in the NYLJ, the Second Circuit has recently issued sweeping new proposed local rules in order to "streamline the process of appeals and improve efficiency."

One of the proposed new rules concerns the procedures on filing a certificate of appealability. Here is the proposed rule:

Local Rule 22.1 Certificate of Appealability

(a) Request to This Court for a COA. In a case governed by 28 U.S.C. § 2253 and FRAP 22(b), this court will not act on a request for a certificate of appealability (COA) unless the district court has denied a COA. If the district court denies a COA, the applicant must, within 28 days after the later of that denial or the filing of the notice of appeal, request a COA in this court. The request must include a copy of the district judge’s order denying the COA, and a statement that (1) identifies each issue that the applicant intends to raise on appeal and the relevant facts, and (2) makes a substantial showing of a denial of a constitutional right as to each issue. A request to this court for a COA is decided without oral argument. The court ordinarily limits its consideration of the request to the issues identified in the request. The appeal may not proceed unless a COA has been issued.

(b) Timing. If a COA issues, the later of that date or the filing of the notice of appeal serves as the date of the notice of appeal for calculating time under FRAP and these Local Rules.

Let me say, it's about time. I have never been able to figure out exactly when a request for a certificate of appealability is due in the circuit. The rules were not stated anywhere and each time I called the clerk's office I got a different answer. So this is definitely a good thing.

Also note that, under the proposed new rule, the court will not issue a COA unless the district court has already denied a COA.