Very brief per curiam* opinion from the Second Circuit today in Blackman v. Ercole. It's actually quite odd. It's more of an internal administrative oversight opinion concerning the method for deciding COA's in the district court, more than a real procedural decision. And it may (I emphasize may) help to solve a perpetual gap in knowledge with respect to when DJ's grant COA's.
*I always want to spell this as "curium," probably because it's how "curiam" is pronounced (or maybe I am just pronouncing it wrong). To note, I did some research to see if "curium" was actually a word. It is (and maybe with an unofficial minor in chemistry I should have known that). Curium is a "silvery metallic synthetic radioactive transuranic element. Its longest lived isotope is Cm 247 with a half-life of 16.4 million years. Atomic number 96; melting point (estimated) 1,350°C; valence 3." I guess that opens up a potential blog post title of "Curium Per Curiam," should a per curiam opinion somehow be described as radioactive.
In Blackman, the EDNY DJ denied habeas relief. Afterwards, the EDNY clerk's office sent the DJ a form to indicate, among other things, whether a COA had been granted. The order denying the petition did not mention this. The judge was asked to check either Yes or No. The DJ checked Yes. But there is nothing on the form to indicate the issue on which a COA was granted.
This upset the Second Circuit. Rather than go after the DJ (whose name was not mentioned at all in the opinion, which is pretty unusual), the Second Circuit attacks the clerk's office for its sloppiness in allowing a DJ to simply check a box. it says, "This does not appear to have been an isolated error, but rather, an oversight triggered by the practice of the Clerk’s Office to notify district judges of requests for COAs using a form that solicits only a 'Granted' or 'Denied' response."
The court says that it does not have the resources to figure out which issue the DJ intended to issue a COA. Apparently, other circuits have had the same problems with its district courts. Thus, the court concludes, "Accordingly, we join our sister circuits that have considered and remanded similarly deficient COAs for specification of issues certified for appeal."
First, let me just say that, in this particular case, I don't think it was too hard to figure out what the issue was on which the COA was granted. The right to remain silent issue was the only issue addressed on the merits in the opinion. The others were clearly procedurally defaulted. And the DJ engaged in a lengthy analysis on the right to remain silent issue. So, I don't think that there was a danger of any resources getting wasted here.
It also feels odd to me that the Second Circuit would do this in a published opinion, rather than as an internal administrative matter. The chief judge could just get on the phone with the different clerk's offices and tell them to stop. An e-mail or memo could have the same effect. Obviously, a published opinion will have the greatest effect, but it's a little like using a cannon to shoot a fly. But this opinion should do the trick.
Despite these quasi qualms I have about the opinion, the upshot, to me, is that this may inspire more judges to either put the COA decision in the order denying the petition (most do, but some do not) or issue a substantive order when granting a COA. If a more substantive order is issued, there is a stronger likelihood that it will end up on Westlaw. This could go towards closing the perpetual gap in knowledge that I have about COA's grants from the district courts that are not a part of the order denying the petition. There aren't many of them, but this case shows that they still do exist.
Here are the details for Blackman:
Blackman v. Ercole, 10-205-pr
- Remanded for Dist. Ct. to Specify Issue on Which COA Was Granted
- Submitted 10/18/11; Decided: 10/27/11 per curiam opinion
- Panel: Miner, Cabranes, Livingston
- Lower Ct. Info: 06-cv-855, 2009 WL 4891767 (EDNY Dec. 17, 2009) (SLT)
- In Circuit: Dist. Ct. COA
- Issues: Improper comments on petitioner's post-arrest silence (probably)