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The purpose of the COA is to convince the court you have issues
which should reviewed. Obviously the District Court does not think
you are going to win, since they have already denied relief.
However, you do not have to prove you will ultimately win in the
court of appeals.
Instead, you must establish (1) the issues are
debatable among reasonable jurists, (2) that a court could resolve
the issues in a different manner, or (3) the questions are adequate
to deserve encouragement to proceed further. Drinkard v. Johnson, 97
F.3d 751 (5th Cir. 1996) You can make that showing in a number of
different ways. One is to show a conflict in the authority relied on
by the District Court, which establishes the issues are debatable.
Another is to set forth the arguments rejected by the District
Court, which hopefully show the issues can be resolved in a
different matter. Finally, you can attempt to establish the issue is
an important one that should be decided by a higher court. This may
be effective when you have a question that has not been previously
decided.
Obtaining a COA under the AEDPA is especially difficult. Not only
must you establish the legal basis for your claims, you also must
establish how you met the standards for relief under the AEDPA.
Generally, that requires some showing that the lower court's
decision is unreasonable, or completely contrary to the facts.
Where a case is dismissed on procedural grounds, you must establish two
things. First, you must make a "credible showing" that the claim
should not have been dismissed. Second, you must establish that your
claims "raise a substantial showing of the denial of a
constitutional right." Davis v. Johnson, 158 F.3d 806 (5th Cir.
1998).
An effective COA is not merely a copy of your petition in District
Court. You must address the District Court order, and the reasoning
employed by the Court. This means you must set forth any contrary
authority, arguments rejected by the court, and any factual or legal
errors.
The COA is more similar to the brief you would file in the
Court of Appeals. Your focus must be on why the District Court
reached the wrong result.
If the District Court denies your COA, the process becomes somewhat
confusing. Since a notice of appeal has been filed, the case still
is docketed in the Court of Appeals. You can therefore file a
separate COA there.
At least in the Fifth Circuit, you must do so if
you want the court to consider your appeal. If you do nothing, they
will dismiss your appeal. The COA will have the same format, and the
purpose is the same.
However, in the Fifth Circuit you may wish to
be more exhaustive in setting forth your claims. You can file a
brief in support of your COA, which will address why you think
relief should be granted. This should be a complete discussion of
your claims, and is no different from the brief you would probably
file if the COA was granted. This may be all the Court considers,
and therefore you should ensure they have everything before them.
A problem can arise when the trial court grants a COA on only some
of the issues. There is a difference of opinion as to whether
another COA must be filed in the Court of Appeals for the other
issues.
Some circuits hold the court of appeals can consider all the issues, even those for which a COA was denied, since the notice of appeal operates as request for COA. See, Porter v. Gramley, 112 F.3d 1308 (7th Cir. 1997); Kincade v. Sparkman, 117 F.3d 949 (6th Cir. 1997). However, the Fifth Circuit has held another COA must be filed in the Court of Appeals. Lackey v. Johnson, 116 F.3d 149 (5th Cir. 1997). Therefore, the need to file another COA may depend on which
circuit you are in.
The COA is an important document, since it may determine whether you obtain further review. Therefore, it must be drawn with some care. Focus not only on the claims, but on the reasons why the COA should be granted. If you do that, you can increase your chances it will be granted.
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