§2253 — Title 28 Judiciary and Judicial Procedure | U.S. Code

Summary

If someone files a habeas corpus case (a challenge to being held) or a case under section 2255 in a federal district court, the final decision can be appealed to the court of appeals for the same circuit where the case was heard. There is no automatic right to appeal a final order that only tests a warrant to move a person to another district for trial or their detention while being moved. For two types of appeals — final orders where the detention came from a State court process, and final orders in section 2255 cases — a judge must first issue a certificate of appealability (permission to appeal). That permission can be given only if the person shows a substantial showing that a constitutional right was denied, and the certificate must say which specific issue or issues meet that test.

Title 28, §2253

Judiciary and Judicial Procedure — Source: USLM XML via OLRC

(a)In a habeas corpus proceeding or a proceeding 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 proceeding in which the detention complained of arises out of process issued by a State court; or

(B)the final order in a proceeding under section 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 paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).

Notes & Related Subsidiaries

Historical and Revision Notes

1948 ActBased 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 ActThis section corrects a typographical error in the second 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 district 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 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 his detention 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 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” for “of removal issued pursuant to section 3042 of Title 18 or the” in second par. 1949—Act May 24, 1949, substituted “3042” for “3041” in second par.

§2253 Appeal