Habeas Corpus Relief: Certificate of Appealability
A habeas corpus petition may be filed by state prisoners in federal court under 28 U.S.C. § 2254 or federal prisoners in federal court under 28 U.S.C. § 2255. The prisoner must argue that his or her detention by state or federal officials violates one of their federal constitutional rights.
The prisoner must be in custody (which has been interpreted broadly) and a federal constitutional right has been violated during a criminal proceeding.
Do you have questions about habeus corpus petitions? Call (888) 241-8181 to schedule an appointment with our Orlando appeals attorneys.
Habeus Corpus Petition Requirements
Habeas corpus proceedings are very complex and have numerous requirements including:
- AEDPA (Anti-Terrorism and Effective Death Penalty Act of 1996)
- Standard of Review (federal constitutional claim is either "contrary to" or "an unreasonable application" of "clearly established" "Supreme Court precedent.")
- Exhaustion of Claims (must raise the federal constitutional claim at all possible instances before filing for habeas corpus relief)
- Avoid procedural default (violation of procedural court rules)
- Statute of Limitations (AEDPA-time limit to file begins to run when the criminal conviction becomes final-there are times when this time clock is tolled)
- Limited to one petition (however sometimes a party may file second or successive petitions)
- Retroactivity (United States Supreme Court decision must be in effect before the criminal conviction becomes final to obtain relief, however again there are exceptions)
When a Federal District Court denies your post-conviction writ of habeas corpus relief, it must either issue or deny a certificate of appealability to the United State Court of Appeals.
If the District Court issues the certificate of appealability it is required to state the specific issue that satisfies 28 U.S.C. § 2253(c)(2).
28 U.S.C. § 2253(c)(2)-A certificate of appealability may issue only if the applicant has made a substantial showing of the denial of a constitutional right.
If the District Court denies a certificate, a party does not have the ability to appeal without first obtaining a certificate of appealability from the United States Court of Appeals.
It is very important that a Notice of Appeal is timely filed to avoid losing your rights.
A Notice of Appeal is required regardless if the District Court issues a certificate of appealability, and please keep in mind a motion to reconsider a denial in the District Court does not extend your time to appeal.
To avoid the many pitfalls an applicant may encounter we strongly advise you to hire an experienced appellate attorney today.
Call now for a free consultation and case review to see which post-conviction remedies are available to you.
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