holding that § 2253 analysis may be done at the time the claim for relief is determined
How later courts described this case
- holding that § 2253 analysis may be done at the time the claim for relief is determined
- referencing Sixth Circuit’s “earlier decision that a district court may decide whether to issue a COA at the time of denial of habeas relief”
- noting that basic rule of statutory construction is to read a statutory provision in a manner consistent with the statute’s other provisions
- ‘We do encourage petitioners as a matter of prudence to move for a COA at their earliest opportunity so that they can exercise their right to explain their argument for issuance of a COA. ” Xemphasis added
Written by the judges who cited it.
The opinion
KENNEDY, Circuit Judge,
concurring.
I concur in the panel’s opinion but write separately to acknowledge the disadvantages that may result from following the procedure our opinion suggests.
First, the issuance of a certificate of appealability contemporaneously with the decision on the writ may result in appeal when otherwise no appeal would have been filed. Second, petitioner may have otherwise requested a COA on only one or two of the issues. Without such a request, the district judge must deal with all the issues raised in the petition for the writ perhaps causing the judge unnecessary work. Third, while the petitioner may move for reconsideration where the COA is entered with the opinion, the burden on the petitioner to persuade the judge to change a ruling is greater than the burden to persuade the judge to adopt that ruling as an initial matter.
However, I concur because Fed. R.App. P. 22(B)(1) requires the district court to issue a COA ruling and we have already approved its issuance at the time of the merits decision.