BY JK
Earlier today, the Supreme Court granted cert. in a habeas case, Jennings v. Stephens, on a procedural question:
Whether the Fifth Circuit erred in holding that a federal habeas petitioner who prevailed in the district court on an ineffective assistance of counsel claim must file a separate notice of appeal and motion for a certificate of appealability to raise an allegation of deficient performance that the district court rejected even though the Fifth Circuit acquired jurisdiction over the entire claim as a result of the respondent’s appeal.
What does this mean? 2253 requires that a petitioner obtain a COA in order to appeal to the circuit court. The State is not required to obtain one. If a district court grants habeas relief, the State is automatically entitled to appeal. When the State appeals, what happens to the grounds that were denied in the district court? Does the habeas petitioner need to get a COA to have the circuit court review any of those issues?
In this case, the petitioner raised one IAC claim with three different allegations of deficient performance. The district court agreed with two of them, but rejected the third. The State appealed from the grant on the two deficient performance grounds. The Fifth Circuit agreed with the State and reversed the district court on those two grounds. When petitioner attempted to argue, "Wait there's one other allegation of deficient performance on which to affirm the judgment," the Fifth Circuit said no chance, you didn't get a COA on that particular allegation of deficient performance.
After reading the petition, it's clear that petitioner is contending that only in this limited circumstance -- where it is a single ground in the district court -- no COA is necessary. Because the cert. grant was to the habeas petitioner, he could see some success on this issue.
But that leaves upon the broader question of whether a COA is necessary when, in a State's appeal, the petitioner asks that the Circuit court review a separate ground that the district court denied. I have only read the cert. petition (not the State's response), but it appears that there is a circuit split on this broader issue. In contrast to the Second and Fifth Circuits, the Seventh Circuit does not require a habeas petitioner to seek a COA on other grounds in a State's appeal. In Szabo v. Walls, 313 F.3d 392, 397 (7th Cir. 2002), the impure-opinion-writing Judge Easterbrook reasoned (with internal citations omitted):
Since 1996 both state and federal prisoners have needed certificates of appealability to obtain appellate review of adverse decisions in collateral attacks. 28 U.S.C. 2253. But the statute deals only with appeals by prisoners; it does not mention arguments by prisoners as appellees offered in support of relief they have obtained. Section 2253(c)(1) begins: “Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from—”. Szabo has not taken an appeal, nor did he need to do so. An appellee may defend his judgment on any ground properly preserved in the district court. Szabo does not ask for additional relief, so he was entitled to proceed exactly as he has done. Two opinions— (ed. cites edited out, but it was one from the Ninth and one from the Fifth) —assume that a certificate of appealability is needed for a prisoner's cross-appeal, and this is a plausible understanding of 2253(c) (though neither court discussed the question). But no court has demanded that a prisoner obtain a certificate of appealability in order to present an extra issue in a case already before the court on*398 the state's appeal, and we are content to apply 2253 as it is written. It serves a gatekeeping function, and once a case is properly before the court of appeals—for state and federal governments need not obtain certificates of appealability, see Fed. R. App. P. 22(b)(3) —there are no remaining gates to be guarded.
So I guess the big question here will be whether the Supreme Court takes on the broader issue or keeps it limited. The merit briefs may provide some indication on how broad the issue before the Court will be.
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