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Second Circuit Overrules Precedent Requiring COA When Appealing Denial of Bail Pending Habeas Decision

In Illarramendi v. United States, 18-35 (October 16, 2018), the Second Circuit (Walker, Calabresi, Livingston) in a per curiam decision affirmed the denial of a motion for bail pending resolution of the motion to vacate petitioner’s sentence under 28 U.S.C. § 2255.  In doing so, however, the Second Circuit held that the petitioner need not obtain a certificate of appealability (COA) in order to proceed with the appeal of the district court’s decision.  This was a departure from Second Circuit precedent—a rare event in the absence of an en banc decision by the Court of Appeals.

The petitioner had been sentenced in the District of Connecticut (Underhill, J.) following his guilty plea to several counts of fraud and conspiracy to obstruct justice; he subsequently filed a motion to vacate his sentence on the grounds that he was denied counsel of choice and that his counsel provided ineffective assistance.  Petitioner then filed two motions seeking release on bail pending the resolution of his habeas petition, which the District Court denied.

The Second Circuit affirmed the decision denying the motion for bail, but rejected the government’s argument that the petitioner had to file a COA pursuant to 28 U.S.C. § 2253(c)(1) in order to appeal the District Court’s decision.  Section 2253(c)(1) states that “an appeal may not be taken to the court of appeals from a final order in a habeas corpus proceeding” without a COA.  In Grune v. Coughlin, 913 F.2d 41 (2d Cir. 1990), the Second Circuit held that this rule applied to an order denying bail pending resolution of a habeas petition.  Almost two decades later, the United States Supreme Court held in Harbison v. Bell, 556 U.S. 180 (2009), that section 2253 applied only to “final orders that dispose of the merits of a habeas corpus proceeding,”

In the years that followed Harbison, Second Circuit motions panels issued unpublished orders denying as unnecessary COA motions in appeals from the denial of bail—in one instance explicitly citing Harbison—thus indicating uncertainty about the status of Grune following the decision in Harbison.  The Second Circuit therefore took the opportunity to hold in this published opinion that, in light of the Supreme Court’s decision in Harbison, a COA is not required when appealing from orders in a habeas proceeding that are collateral to the merits of the habeas claim itself, including the denial of bail.

The ruling here is a good one: the COA rules are strict and should not be read more broadly than written by Congress.  If Congress meant to require a COA for this type of appeal, it would have been easy for Congress to have written the statute to say this in so many words.  In addition, when Circuit precedent is no longer valid due to an intervening Supreme Court decision, a panel acts within its authority when it overrules Circuit precedent.  At the same time, the Circuit’s decision should not occasion much optimism for habeas petitioners who wish to see their bail denials reversed; this is because the legal standard for bail is a demanding one.  See Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001) (“extraordinary circumstances exist that make the grant of bail necessary to make the habeas relief effective”).  Although future habeas litigants may benefit from the Illarramendi decision, Illarramendi himself will not be one of them, as his bail denial was affirmed.