28 U.S.C. § 2253 — Appeal

Page 522 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2252 any such proceeding shall be as valid as if no ha- beas corpus proceedings or appeal were pending. (June 25, 1948, ch. 646, 62 Stat. 966; Pub. L. 109–177, title V, § 507(f), Mar. 9, 2006, 120 Stat. 251.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 465 (R.S. § 766; Mar. 3, 1893, ch. 226, 27 Stat. 751; Feb. 13, 1925, ch. 229, § 8(c), 43 Stat. 940; June 19, 1934, ch. 673, 48 Stat. 1177). Provisions relating to proceedings pending in 1934 were deleted as obsolete. A provision requiring an appeal to be taken within 3 months was omitted as covered by sections 2101 and 2107 of this title. Changes were made in phraseology. Editorial Notes AMENDMENTS 2006—Pub. L. 109–177 designated first par. of existing provisions as subsec. (a)(1) and inserted headings, added pars. (2) and (3), and designated second par. of existing provisions as subsec. (b) and inserted heading. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2006 AMENDMENT Pub. L. 109–177, title V, § 507(d), Mar. 9, 2006, 120 Stat. 251, provided that: ‘‘(1) IN GENERAL.—This section [enacting section 2265 of this title, amending this section and sections 2261 and 2266 of this title, and repealing former section 2265 of this title] and the amendments made by this section shall apply to cases pending on or after the date of en- actment of this Act [Mar. 9, 2006]. ‘‘(2) TIME LIMITS.—In a case pending on the date of en- actment of this Act, if the amendments made by this section establish a time limit for taking certain action, the period of which began on the date of an event that occurred prior to the date of enactment of this Act, the period of such time limit shall instead begin on the date of enactment of this Act.’’ § 2252. Notice Prior to the hearing of a habeas corpus pro- ceeding in behalf of a person in custody of State officers or by virtue of State laws notice shall be served on the attorney general or other appro- priate officer of such State as the justice or judge at the time of issuing the writ shall di- rect. (June 25, 1948, ch. 646, 62 Stat. 967.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 462 (R.S. § 762). Section 462 of title 28, U.S.C., 1940 ed., was limited to alien prisoners described in section 453 of title 28, U.S.C., 1940 ed. The revised section extends to all cases of all prisoners under State custody or authority, leav- ing it to the justice or judge to prescribe the notice to State officers, to specify the officer served, and to sat- isfy himself that such notice has been given. Provision for making due proof of such service was omitted as unnecessary. The sheriff’s or marshal’s re- turn is sufficient. Changes were made in phraseology. § 2253. Appeal (a) In a habeas corpus proceeding or a pro- ceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings. (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— (A) the final order in a habeas corpus pro- ceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under sec- tion 2255. (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under para- graph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). (June 25, 1948, ch. 646, 62 Stat. 967; May 24, 1949, ch. 139, § 113, 63 Stat. 105; Oct. 31, 1951, ch. 655, § 52, 65 Stat. 727; Pub. L. 104–132, title I, § 102, Apr. 24, 1996, 110 Stat. 1217.) HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., §§ 463(a) and 466 (Mar. 10, 1908, ch. 76, 36 [35] Stat. 40; Feb. 13, 1925, ch. 229, §§ 6, 13, 43 Stat. 940, 942; June 29, 1938, ch. 806, 52 Stat. 1232). This section consolidates paragraph (a) of section 463, and section 466 of title 28, U.S.C., 1940 ed. The last two sentences of section 463(a) of title 28, U.S.C., 1940 ed., were omitted. They were repeated in section 452 of title 28, U.S.C., 1940 ed. (See reviser’s note under section 2241 of this title.) Changes were made in phraseology. 1949 ACT This section corrects a typographical error in the sec- ond paragraph of section 2253 of title 28. Editorial Notes AMENDMENTS 1996—Pub. L. 104–132 reenacted section catchline without change and amended text generally. Prior to amendment, text read as follows: ‘‘In a habeas corpus proceeding before a circuit or dis- trict judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit where the proceeding is had. ‘‘There shall be no right of appeal from such an order in a proceeding to test the validity of a warrant to re- move, to another district or place for commitment or trial, a person charged with a criminal offense against the United States, or to test the validity of his deten- tion pending removal proceedings. ‘‘An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a State court, unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause.’’ 1951—Act Oct. 31, 1951, substituted ‘‘to remove, to an- other district or place for commitment or trial, a per- son charged with a criminal offense against the United States, or to test the validity of his’’ for ‘‘of removal issued pursuant to section 3042 of Title 18 or the’’ in second par. Page 523 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2254 1949—Act May 24, 1949, substituted ‘‘3042’’ for ‘‘3041’’ in second par. § 2254. State custody; remedies in Federal courts (a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in be- half of a person in custody pursuant to the judg- ment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. (b)(1) An application for a writ of habeas cor- pus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that— (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant. (2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the rem- edies available in the courts of the State. (3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the require- ment. (c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented. (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. (e)(1) In a proceeding instituted by an applica- tion for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and con- vincing evidence. (2) If the applicant has failed to develop the factual basis of a claim in State court pro- ceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on— (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously un- available; or (ii) a factual predicate that could not have been previously discovered through the exer- cise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the ap- plicant guilty of the underlying offense. (f) If the applicant challenges the sufficiency of the evidence adduced in such State court pro- ceeding to support the State court’s determina- tion of a factual issue made therein, the appli- cant, if able, shall produce that part of the record pertinent to a determination of the suffi- ciency of the evidence to support such deter- mination. If the applicant, because of indigency or other reason is unable to produce such part of the record, then the State shall produce such part of the record and the Federal court shall di- rect the State to do so by order directed to an appropriate State official. If the State cannot provide such pertinent part of the record, then the court shall determine under the existing facts and circumstances what weight shall be given to the State court’s factual determina- tion. (g) A copy of the official records of the State court, duly certified by the clerk of such court to be a true and correct copy of a finding, judi- cial opinion, or other reliable written indicia showing such a factual determination by the State court shall be admissible in the Federal court proceeding. (h) Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under this section, and any subsequent proceedings on review, the court may appoint counsel for an applicant who is or becomes fi- nancially unable to afford counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appoint- ment of counsel under this section shall be gov- erned by section 3006A of title 18. (i) The ineffectiveness or incompetence of counsel during Federal or State collateral post- conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254. (June 25, 1948, ch. 646, 62 Stat. 967; Pub. L. 89–711, § 2, Nov. 2, 1966, 80 Stat. 1105; Pub. L. 104–132, title I, § 104, Apr. 24, 1996, 110 Stat. 1218.) HISTORICAL AND REVISION NOTES This new section is declaratory of existing law as af- firmed by the Supreme Court. (See Ex parte Hawk, 1944, 64 S. Ct. 448, 321, U.S. 114, 88L. Ed. 572.) SENATE REVISION AMENDMENTS Senate amendment to this section, Senate Report No. 1559, amendment No. 47, has three declared purposes, set forth as follows: ‘‘The first is to eliminate from the prohibition of the section applications in behalf of prisoners in custody under authority of a State officer but whose custody has not been directed by the judgment of a State court. If the section were applied to applications by persons detained solely under authority of a State officer it would unduly hamper Federal courts in the protection of Federal officers prosecuted for acts committed in the course of official duty. ‘‘The second purpose is to eliminate, as a ground of Federal jurisdiction to review by habeas corpus judg- ments of State courts, the proposition that the State court has denied a prisoner a ‘fair adjudication of the legality of his detention under the Constitution and laws of the United States.’ The Judicial Conference be-