# Amicus Curiae Brief — Hohn v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0098%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1998
- **Citation:** 524 U.S. 236

## Text

“Supreme Court, U.S,
FItLtLeEpD

HAN 28 1996

In The ys,
RE Court of the United States o
October Term, 1997 ;

> .

ARNOLD F. HOHN,

Petitioner, 4
v.
UNITED STATES OF AMERICA,
Respondent.
.
On Writ Of Certiorari
To The United States Court Of Appeals
For The Eighth Circuit
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ant

QUESTION PRESENTED

In light of the fact that the Court of Appeals denied
the petitioner’s request for a Certificate of Appealability,
does this Court have jurisdiction to grant certiorari,
vacate, and remand this case per the suggestion of the
Solicitor General?

TABLE OF CONTENTS

OS TE

Page
Ech oheiWebaes$a8cesesecceseccceces 1
STATUTORY PROVISIONS AND RULES INVOLVED 1
EIR SS Ca Naecbceetbeseccneuccosvscccocs 1
A. The Gatekeeping Requirement for Habeas
CEs hb awstcceestcccccccescoss 2
Be EE MII, ccc cc nsccnccscccccce 4
SUES oS a daweencccceccccscvcccees 5
D. The Underlying Proceedings................. 7
‘SUMMARY OF ARGUMENT.................00005. 10
TERE SLRS S008 bb douse bebcccevevcccrecsess 14
I. Article III Vests Congress With Power To
Streamline Appellate Review Of Habeas
i ico6edisbebbavedsetscenceseese 14
Il. Under The Plain Terms Of Sections 1254(1),
1651, And 2253(c)(1), Congress Has Not Given
The Supreme Court Certiorari Power To
Review Unsuccessful Appiications For A Cer-
tificate Of Appealability..................... 15
Ill. Case Law Confirms This Interpretation ...... 20
A. Longstanding Precedent Emphasizes That
Leave-To-Appeal Decisions May Not Be
Reviewed Under § 1254(1) .............. 21
1. Several Decisions of The Court Sup-
port This Interpretation.............. 21
2. Mr. Hohn’s Contrary Arguments Are

***

TABLE OF CONTENTS - Continued

Page

B. Precedent Demonstrates That The Court
May Not Review An Application For A
Certificate Of Appealability Under The All
POPP TTTIT TT TTTTT TTT eee

1. Mr. Hohn’s Petition Raises No
Urgency And Asks The Court To Con-
strue § 1651 To Create Jurisdiction
That Congress Has Expressly
Addressed Elsewhere................

2. Neither House v. Mayo Nor Any Other
Decision Alters This Conclusion. .....

IV. Mr. Hohn’s Other Arguments Exceed The
Scope Of The Question Presented, And Have
BD TENG ccc cccccccccececccccccccccscces:

GED ccecncccccccccccccccocceccevecccoses

iv

TABLE OF AUTHORITIES

Page
Cases
Adams v. United States ex rel. McCann, 317 U.S. 269

Saws 6dc Cbbeees bbeeeuehenstesdantash bnddeeks 38
Adkins v. El. DuPont de Nemours & Co., 335 US.

ai iin dni het ete nt et edatinns hnnesuns 29
Bailey v. United States, 516 U.S. 137 (1995)............ 8
Bankers Life & Casualty Co. v. Holland, 346 U.S. 379

es 6 we teat ein th be le airs ois i nee ee le a 31, 32
Barefoot v. Estelle, 463 U.S. 880 (1983) ......... 2, 28, 29
Beavers v. Pruett, 118 S.Ct. 621 (1997)................ 20
Bilik v. Strassheim, 212 U.S. 551 (1908)............... 22
Bray v. Alexandria Women's Health Clinic, 506 US.

Bee Cn dcbecsoudenesd6s catubenteeeahesiuidesa< 40
Carbo v. United States, 364 U.S. 611 (1961)............ 6
Carlisle v. United States, 517 U.S. 416 (1996)

0000eeesencébancnieadedessidibaedanea 13, 30, 32, 35
Chevron, U.S.A. v. Natural Resources Defense Coun-

i, Se ee be cvdndvncedsééidsccesecs 42
Davis v. Jacobs, 454 U.S. 911 (1981)....... 12, 21, 23, 24
DeBeers Consolidated Mines, Ltd. v. United States,

f Ff § Fates nin sane rees 34
Durousseau v. United States, 10 U.S. (6 Cranch) 307

Ss 6260 chun duende thibaeniasbieladimddiidnad ods o6-as 14
Ex Parte Patrick, 212 U.S. 555 (1908)................. 22
Ex Parte Peru, 318 U.S. 578 (1942)................. 5, 31

Vv

TABLE OF AUTHORITIES - Continued

Page
FEC v. NRA Political Victory Fund, 513 U.S. 88
Dnt .secahbenbntenbeeethenectenecaseeqacesesas 25
Felker v. Turpin, 116 S. Ct. 2333 (1996)............ 14, 15
Ferguson v. District of Columbia, 270 U.S. 633 (1926) .... 23
Fornaris v. Ridge Tool Co., 400 U.S. 41 (1976)......... 41
Forsyth v. Hammond, 166 U.S. 506 (1897)............. 29
Hagans v. Lavine, 415 U.S. 528 (1974)............005- 25
House v. Mayo, 324 U.S. 42 (1945) ...... 6.6.06... passim
In re Burwell, 350 U.S. 521 (1956) ............000005- 24
In re 620 Church Street Bldg. Corp., 299 U.S. 24
Pv ancctevesscoccsceccescescesseoccvcscnese 23, 37
In re Commonwealth of Massachusetts, 197 U.S. 482
in coddddncecedeckasousesecenseenscecocacens ss 34
Jeffries v. Barksdale, 453 U.S. 914 (1981)........... 22, 28 .
Kennedy v. Lainson, 323 U.S. 780 (1944).............. 23
Kokkonen v. Guardian Life Ins. Co. of America, 511
SR Se MED cn dcccnaccececeeteecedesecoecccess 41
Lindh v. Murphy, 117 S. Ct. 2059 (1997)............-. 27
McCarthy v. Harper, 449 U.S. 1309 (1981) ............ 22
McClung v. Stillman, 19 U.S. (6 Wheat) 598 (1821) .... 34
McIntire v. Wood, 11 U.S. (7 Cranch) 504 (1813)...... 34
McNutt v. General Motors Acceptance Corp., 298 U.S.
Be Gc ccccccchcdectcccccetecceciccccscccccces 41

Nixon v. Fitzgerald, 457 U.S. 731 (1982).........-- 27, 28

vi

TABLE OF AUTHORITIES - Continued

Page
Olmstead v. United States, 277 U.S. 438 (1928)........ 42
Parr v. United States, 351 U.S. 513 (1956) ............ 35
Parker v. Randolph, 442 U.S. 62 (1979) ............... 40
Pennsylvania Bureau of Correction v. United States
Marshals Service, 474 U.S. 34 (1985) ........... passim
Roche v. Evaporated Milk Assn., 319 U.S. 21 (1943) .... 34
Snyder v. Harris, 394 U.S. 332 (1969)................. 42
United States v. Beatty, 232 U.S. 463 (1914)........... 34
United States v. Jones, 990 F.2d 1047 (8th Cir. 1993),
cert. denied, 510 U.S. 1048 (1994), denial of habeas
corpus aff'd, 39 F.3d 1184 (8th Cir. 1994)............ 8
United States v. Nixon, 418 U.S. 683 (1974)........... 27
U.S. Alkali Export Assn. v. United States, 325 US.
ee Cen 6c: ctddns bubaec decd eeussénenenete ascoes 33
Will v. Michigan Dept. Of State Police, 491 U.S. 58
SPENT S 6bnoUhbbkd catesubeuesénsedeeenabesiabeces 25
ConstiTuTION, STATUTES AND RuLes
ee in A TEE db dncndbsdcncccuccacckucacus 14
ee is GIy SN Ecc ccccsdcaccatincsucctes 11, 14
Judiciary Act of 1789, § 14, 1 Stat. 81................ 6
Act of March 3, 1891, ch. 517, § 6, 26 Stat. 828....... 5
Act of March 10, 1908, ch. 76, 35 Stat. 40............ 3
Act of March 3, 1911, ch. 231, § 240, 36 Stat. 1157..... 6

vii

TABLE OF AUTHORITIES - Continued

Page
Act of February 13, 1925, ch. 229, § 240(a), 43 Stat.

DE. neunevechenescesneeecskentaeseosenesoeacedess 35
Act of June 25, 1948, ch. 646, § 2253, 62 Stat. 967...4, 7
Act of May 24, 1949, ch. 139, § 90, 63 Stat. 102...... 7
H.R. Rep. No. 23, 60th Cong., Ist Sess., 2 (1908); 42

Cong. Rec. 608-09 (1908). ..... 0... 0s cece eee e eee eees 3
H.R. Rep. No. 308, 80th Cong., Ist Sess. (1948)....... 7
18 U.S.C. 922(g) ......-. cece eee eee eee e eee eeeeecees 8
EE ns cca ckepecssesoancescesebinenissenes 8
BE CBE. GER. oc cccscsvcvcccces _eceaunnsueensabaeta 8
SD UBL. G66 CIDER 2. oc cccccccsccccccccccscccecsccce 3
GN TED cc coccccccccesccccecscesccacens passim
TE BIDE, BIBI 2. cccccccccccccccccccccccccccccess 35 |
RN, BR sci cccccccscccscvescessescesseones 11, 15
, Bil me °. ) | errr rrr er passim
BB UBC. BBB... cccccccccccsccccccccccescscces passim
TE CIDE, BEBRRED .n wc ccccdcccccccccccccccccccses passim
BO BD. co vcccccccccsccccesccsccceesseneces passim

OrHerR AUTHORITY

Blackmun, Allowance of In Forma Pauperis Appeals
In Section 2255 and Habeas Corpus Cases, 43
RRD. 343 (1967) 2... ccccccccccccccccccccesccvceces 28

JURISDICTION

On November 4, 1996, the court of appeals denied
Mr. Hohn a certificate of appealability, and on February
10, 1997 denied his petition for rehearing. On May 12,
1997, Mr. Hofn filed a petition for a writ of certiorari,
trying to invoke jurisdiction under 28 U.S.C. 1254(1).
Because no judge or justice has granted him leave to
appeal, as required under 28 U.S.C. 2253(c)(1), because
his case was never “in” that court, as required under
§ 1254(1), and because his case does not otherwise meet
the requirements of 28 U.S.C. 1651, he may not rely on
either the statutory or common law writ. The Court
accordingly lacks jurisdiction to grant certiorari, vacate,
and remand the case, and should dismiss the petition.

o

STATUTORY PROVISIONS AND RULES INVOLVED

The relevant statutory provisions and rules are repro- .
duced in an appendix to this brief.

e

STATEMENT

This case concerns the one aspect of the Court's
jurisprudence that perhaps rivals the importance of its
authority to engage in judicial review, namely the sensi-
tive determination of when such power exists. At issue
are three lines of federal legislation regarding the Court's
jurisdiction —- one concerning its power to review habeas
corpus claims, another addressing its authority to exer-
cise appellate jurisdiction through a writ of certiorari, the

last addressing its power under the All Writs Act.
Because the issues raised by Mr. Hohn’s certiorari peti-
tion implicate all three pieces of legislation and because
the background of each law bears on this dispute, it is
useful at the outset to set forth the history of the three
statutes as well as the circumstances that make them
relevant to Mr. Hohn.

A. The Gatekeeping Requirement for Habeas
Corpus Appeals.

Since the turn of the century, Congress has limited
the rights of habeas corpus claimants to seek appellate
review of their claims. “In 1908, concerned with the
increasing number of frivolous habeas corpus petitions
challenging capital sentences which delayed execution
pending completion of the appellate process, Congress
inserted the requirement that a prisoner first obtain a
certificate of probable cause to appeal before being enti-
tled to do so.” Barefoot v. Estelle, 463 U.S. 880, 893 n.3
(1983) (citation omitted). To this end, Congress enacted
the following requirement:

That from a final decision by a court of the
United States in a proceeding in habeas corpus
where the detention complained of is by virtue
of process issued out of a State court no appeal to
the Supreme Ccurt shall be allowed unless the
United States court by which the final decision was
rendered or a justice of the Supreme Court shall be of
opinion that there exists probable cause for an
appeal, in which event, on allowing the same, the
said court or justice shall certify that there is
probable cause for such allowance.

Act of March 10, 1908, ch. 76, 35 Stat. 40 (emphasis
added).

Entitled “An Act Restricting in Certain Cases the
Right of Appeal to the Supreme Court in Habeas Corpus
Proceedings,” the statute had a straightforward goal. It
sought to make “it impossible to continue th[e] vicious
practice” of delaying the execution of sentences and
undermining the finality of criminal sentences, “as under
it no appeal can be prosecuted unless either the United
States court making the final decision or a justice of the
Supreme Court shall be of the opinion that there exists
probable cause for such appeal.” H.R. Rep. No. 23, 60th
Cong., 1st Sess., 2 (1908); 42 Cong. Rec. 608-09 (1908).

In 1925, while enacting legislation designed to curb
the Court’s obligatory jurisdiction, Congress modified the
gatekeeping requirement. Instead of allowing unsuccess-
ful habeas claimants to seek leave to appeal from a justice
of the Court, the amendment allowed applicants only to
seek leave from the district court judge who denied the
claim or from a judge of the court of appeals. Act of
February 13, 1925, ch. 229, §§ 6(d), 13, 43 Stat. 940, 942; 28
U.S.C. 466; Appendix.

Twenty-three years later, Congress amended the stat-
ute again, this time giving the habeas claimant three
sources for obtaining a certificate of probable cause — the
district court, the court of appeals or the Supreme Court.
Accordingly, starting in 1948, the statute provided that
“an appeal may not be taken to the court of appeals . . .
unless the justice or judge who rendered the order or a
circuit justice or judge issues a certificate of probable

cause.” Act of June 25, 1948, ch. 646, § 2253, 62 Stat. 967,
28 U.S.C. 2253; Appendix.

Finally, in 1996, Congress reenforced the leave-to-
appeal requirement with passage of The Anti-Terrorism
and Effective Death Penalty Act (the “Act” or “AEDPA”).
The legislature gave the gatekeeping requirement a more
explicit name (a “certifieate of appealability”), extended
the requirement to habeas claims brought by federal pris-
oners under § 2255, and required all claimants (federal or
State) to demonstrate “a substantial showing of the denial
of a constitutional right.” In its current form, the require-
ment thus provides that “an appeal may not be taken”
“[ujnless a circuit justice or judge issues a certificate of
appealability.” 28 U.S.C. 2253(c)(1).

B. The Certiorari Statute.

In contrast to the gatekeeping requirement, the story
of congressional legislation regarding the Court's cer-
tiorari jurisdiction has primarily been one of continuity,
not change. Congress first vested the Court with cer-
tiorari power to review federal courts of appeals’ deci-
sions in 1891. In the same Act that established these
appellate courts, Congress gave the Court the following
power:

And excepting also that in any such case as
is hereinbefore made final in the circuit court of
appeals it shall be competent for the Supreme
Court to require, by certiorari or otherwise, any
such case to be certified to the Supreme Court
for its review and determination with the same
power and authority in the case as if it had been

carried by appeal or writ of error to the
Supreme Court.

Act of March 3, 1891, ch. 517, § 6, 26 Stat. 828.

After making a slight modification to the statute in
1911, see Appendix, Congress enacted legislation in 1925
designed “to curtail the Court’s obligatory jurisdiction by
substituting, for the appeal as of right, discretionary
review by certiorari in many classes of cases.” Ex Parte
Peru, 318 U.S. 578, 585 n.4 (1942). In doing so, Congress
made clear that the Court’s certiorari power extends to
“any case, civil or criminal, in a circuit court of appeals.”
Act of February 13, 1925, ch. 229, § 240(a), 43 Stat. 938;
Appendix.

Amendments to the provision in 1948 and again in
1988 brought the provision to its current form, which
now reads:

Cases in the courts of appeals may be
reviewed by the Supreme Court by .. . writ of
certiorari granted upon the petition of any party
to any civil or criminal case, before or after
rendition of judgment or decree.

28 U.S.C. 1254(1) (emphasis added).

Cc. The All Writs Act.

The All Writs Act has long been a constant on the
judicial landscape. First enacted as part of the Judiciary
Act of 1789, the “extraordinary writ” has always required
at a minimum some form of necessity before it could be
deployed. See Pennsylvania Bureau of Correction v. United

States Marshals Service, 474 U.S. 34, 43 (1985). In its initial
form, the law provided as follows:

That all the before-mentioned courts of the
United States shall have power to issue writs of
scire facias [to enforce a judgment], habeas
corpus, and all other writs not specially pro-
vided for by statute, which may be necessary for
the exercise of their respective jurisdictions, and
agreeable to the principles and usages of law.

Judiciary Act of 1789, § 14, 1 Stat. 81.

Several modest changes to the provision occurred
over the next 120 years, the primary one being the sever-
ance of the writ of habeas corpus from the All Writs Act.
See Carbo v. United States, 364 U.S. 611, 615 & n.6 (1961).
Congress did not modify the provision again until 1911,
when it altered the statute to provide:

The Supreme Court and the district courts
shall have power to issue writs of scire facias.
The Supreme Court, the circuit courts of
appeals, and the district courts shall have power
to issue all writs not specifically provided for by
statute, which may be necessary for the exercise
of their respective jurisdictions, and agreeable to
the usages and principles of law.

Act of March 3, 1911, ch. 231, § 262, 36 Stat. 1162.

Finally, in 1948 (coupled with a minor alteration in
1949), Congress amended the provision to its current
form, which now reads:

The Supreme Court and all courts estab-
lished by Act of Congress may issue all writs

necessary or appropriate in aid of their respec-
tive jurisdictions and agreeable to the usages
and principles of law.

28 U.S.C. 1651(a); see Act of June 25, 1948, ch. 646, 62 Stat.
944; Act of May 24, 1949, ch. 139, § 90, 63 Stat. 102. In
making these changes, Congress merely “consolidated
various provisions into § 1651 and made ‘necessary
changes in phraseology’ without substantive amend-
ment.” Pennsylvania Bureau of Correction v. U.S. Marshals,
474 U.S. 34, 41 (1985) (quoting H.R. Rep. No. 308, 80th
Cong., 1st Sess. A144).

D. The Underlying Proceedings.

These statutes, together with the history behind
them, became relevant to Arnold Hohn when he chose to
distribute methamphetamine from his home in Omaha,
Nebraska. After learning from an informant that Mr.
Hohn was selling drugs from his residence and that he
always had at least one gun on his person, the police
obtained a “no knock” warrant to search his house. On
June 20, 1990, they conducted the search, which uncov-
ered 16 grams of methamphetamine, drug paraphernalia,
several weapons and money. The police found the drugs
and three loaded weapons (two in holsters) within a few
feet of each other on the kitchen counter. Elsewhere in the
kitchen and the house, they found three other firearms,
one of them loaded. J.A. 34, 43.

The police promptly arrested Mr. Hohn. They
charged him with using and carrying a firearm in relation
to a drug offense under 18 U.S.C. 924(c)(1), possession
with intent to distribute methamphetamine within 1000

feet of a public school under 21 U.S.C. 845a and being a
felon in possession of a firearm in violation of 18 U.S.C.
922(g) and 924(a).

A jury convicted Mr. Hohn on all three counts, and
he was sentenced to 90 months in prison. He appealed to
the Eighth Circuit, raising three claims — that the federal
government violated the Speedy Trial Act, that his
motion to suppress evidence from the search of his resi-
dence should have been granted, and that the charge
concerning drug distribution within the vicinity of a
schoolyard should have been dismissed. J.A. 12-26.
Nowhere in his appeal did he challenge the sufficiency of
the evidence to support his § 924(c)(1) conviction for
using or carrying a firearm in relation to a drug offense.
Id. On November 8, 1993, the court of appeals affirmed.
Id.

On January 24, 1996, Mr. Hohn filed a motion in the
United States District Court for the District of Nebraska
to vacate, set aside or correct his sentence under 28 U.S.C.
2255. Relying on this Court’s decision in Bailey v. United
States, 116 S. Ct. 501 (1995), he argued that his conduct
did not violate § 924(c)(1) because the government failed
to show that he was “using” a firearm in the course of a
drug transaction. In Bailey, the Court determined that
“use” requires the government to prove “an active
employment of the firearm by the defendant, a use that
makes the firearm an operative factor in relation to the
predicate offense.” Id. at 505. The decision overruled
prior lower-court authority to the effect that “ ‘use’ may
be inferred from the availability and presence of the
firearm.” United States v. Jones, 990 F.2d 1047, 1050 (8th

Cir. 1993), cert. denied, 510 U.S. 1048 (1994), denial of habeas
corpus aff'd, 39 F.3d 1184 (8th Cir. 1994).

On April 24, 1996, while the district court was con-
sidering Mr. Hohn’s § 2255 petition, the President signed
into law the Anti-Terrorism and Effective Death Penalty
Act. The new law modified the process for appealing a
§ 2255 motion, requiring the inmate to obtain a “certifi-
cate of appealability” as a prerequisite to an “appeal-

.. from... the final order in a proceeding under section
2255.” 28 U. S.C. 2253(c)(1). Such a certificate may issue,
the Act provided, only upon a “substantial showing of
the denial of a constitutional right.” 28 U.S.C. 2253(c)(2).

On July 18, 1996, the district court rejected Mr.
Hohn’'s § 2255 motion. The court concluded that he had
waived any claim to challenge the jury instructions
regarding “use” because he did not object to the instruc-
tions on direct appeal. J.A. 37.

On July 29, 1996, Mr. Hohn filed a notice of appeal.
Treating the notice as a certificate of appealability under
the three-month-old AEDPA, the Eighth Circuit denied
Mr. Hohn leave to appeal. It reasoned that at most he was
“making a claim to a federal statutory right,” not a “con-
stitutional claim” as required under the statute. J.A. 42.
“Bailey did no more than interpret a statute,” the court
concluded, “and an incorrect application of a statute by a
district court, or any other court, does not violate the
Constitution.” Id. Because “petitioner makes no due pro-
cess claim with respect to the trial judge’s action” and
because in any event “trial errors hardly ever rise to the
level of a due process violation,” the court found that Mr.

10

Hohn had not made a “substantial showing of the denial
of a constitutional right” as required under § 2253(c)(2).
Id.

At that point, Mr. Hohn did not seek leave to appeal
from a justice of the Supreme Court, as permitted under
§ 2253(c)(1). Instead, he filed a petition for a writ of
certiorari, attempting to invoke jurisdiction under 28
U.S.C. 1254(1). The petition sought review of the court of
appeals’ determination that he was not entitled to a cer-
tificate of appealability because his claim raises a statu-
tory, not a constitutional, question. In response, the
government agreed that Mr. Hohn’s claim could be char-
acterized as constitutional, and that the court of appeals
erred in reaching a contrary conclusion. The government
suggested that the petition should be granted, the lower
court decision vacated, and the case remanded for further
consideration whether a certificate of appealability
should issue.

On October 31, 1997, the Court granted certiorari. In
light of the court of appeals’ denial of Mr. Hohn’s request
for a certificate of appealability, the Court limited cer-
tiorari to whether it had jurisdiction to act on the sugges-
tion of the Solicitor General of the United States to grant,
vacate and remand the case.

°

SUMMARY OF ARGUMENT

The Court lacks jurisdiction over the petition. Con-
gress has precluded the Court from exercising statutory
or common law certiorari power over a court of appeals’

11

denial of an inmate’s application for a certificate of
appealability.

1. Under the exceptions and regulations clause (U.S.
Const., Art. III, § 2), Congress may streamline collateral
review of requests for release filed by federal and State
prisoners. It thus may prohibit appellate review of — and
terminate - a rejected habeas corpus petition in the event
the applicant fails to obtain leave to appeal. Nothing
about such legislation tests the borders of Congress’s
power under the clause. Because the claimant remains
free to file an “original” habeas corpus application in this
Court under 28 U.S.C. 2241, or an application for a certifi-
cate of appealability with a justice of the Court, the law
does not exceed congressional power.

2. Congress not only has the power to regulate the
Court's appellate jurisdiction in this way, but it also has
unmistakably done so in this instance. In unyielding
terms, § 2253(c)(1) says that “an appeal may not be taken |
to the court of appeals” in the absence of a “certificate of
appealability” from an Article III judge or justice. The
plain import of the language of the provision is to expe-
dite review by setting a specific course for considering
requests for leave to appeal and by finalizing those cases
that fail to obtain the required certificate.

The language of §§ 1254(1) and 1651 cements this
conclusion. Section 1254 requires a “case” to be “in” the
court of appeals before certiorari may be sought. Denial
of leave to appeal prevents the case from ever entering
the court of appeals, and it defies common sense to
conclude that a certificate-to-appeal-a-case is itself a case.
Because Mr. Hohn retains discretion to seek a certificate

12

of appealability from this Court, he also cannot credibly
argue that a common law writ of certiorari is “necessary”
or “appropriate” “in aid” of the Court's jurisdiction. The
certificate-of-appealability option does everything that
§ 1651 could possibly do for him. It allows the Court to
dispense individual justice (by granting leave to appeal
when due), and to provide guidance regarding the gate-
keeping standard (by interpreting the standard in review-
ing an application itself). Nor would a common law writ
be used “in aid” of the Court’s jurisdiction. Quite to the
contrary, he is looking to the writ precisely to evade the
express requirements of §§ 2253(c)(1) and 1254(1), not to
supplement them.

3. The Court’s decisions all respect the plain lan-
guage of these jurisdictional limitations.

a. Since 1908, when Congress first imposed a
gatekeeping standard on appellate review of collateral
challenges to a criminal sentence, the Court’s opinions
have unanimously precluded inmates from invoking
§ 1254(1) (or its predecessors) to seek review of a denied
leave to appeal. In House v. Mayo, 324 U.S. 42 (1945), for
example, the Court prevented an inmate from doing just
that. Because jurisdiction under the certiorari statute
“extends only to cases ‘in a circuit court of appeals,’ ”
and because “the case was never ‘in’ the court of appeals,
for want of a certificate of probable cause,” the Court
refused to exercise its statutory certiorari powers over the
petition. Id. at 44. Other opinions follow the same course.
See, e.g., Davis v. Jacobs, 454 U.S. 911 (1981).

b. Case law also prevents litigants from using
the All Writs Act to escape the detailed jurisdictional

13

requirements of §§ 2253 and 1254(1). Because the Act is a
“residual source of authority,” not a free flowing source
of jurisdiction, because it only permits the Court “to issue
writs that are not otherwise covered by statute,” Carlisle
v. United States, 116 S. Ct. 1460, 1467 (1996) (quotation
omitted), and because it requires necessity of some kind,
the Act has no application here. Mr. Hohn self-evidently
is trying to use the Act to avoid the consequences of
“express statutory provision[s]” that prohibit jurisdiction.
Pennsylvania Bureau of Correction v. United States Marshals
Service, 474 U.S. 34, 42 (1985). And, even if this were
permissible, the option of applying for a certificate of
appealability to the Court dooms any claim that extraor-
dinary or exceptional circumstances require relief in this
instance.

House v. Mayo does not alter this conclusion. When
the Court decided House in 1945, Congress did not permit
habeas litigants to seek leave to appeal from this Court.
Accordingly, the inmate faced a predicament then - no
recourse for a mistaken denial of leave to appeal — that
Mr. Hohn can only conjure today. No urgency, in short,
supports his reliance on the Act under these circum-
stances. At the same time, the increasingly “express statu-
tory provisions,” established in 1948 and 1996,
streamlining the appellate rights of habeas claimants pro-
hibit continued reliance on the common law writ of cer-
tiorari in this setting.

14

ARGUMENT

I. Article III Vests Congress With Power To Streamline
Appellate Review Of Habeas Corpus Cases.

As a preliminary matter, Congress has authority to
limit the Supreme Court’s appellate “judicial Power”
(U.S. Const., Art. III, § 1) in the way it did here. Apart
from three discrete classes of original jurisdiction cases,
the Constitution provides that “in all other Cases . . . the
supreme Court shall have appellate Jurisdiction, both as
to Law and Fact, with such Exceptions, and under such
Regulations as the Congress shall make.” Art. III, § 2.
While the Court’s “appellate powers ‘are given by the
constitution,’” they thus ” ‘are limited and regu-
lated . . . by such [congressional] acts as have been passed
on the subject.’” Felker v. Turpin, 116 S. Ct. 2333, 2339
(1996) (quoting Durousseau v. United States, 10 U.S. (6
Cranch) 307, 314 (1810)).

No doubt some jurisdictional statutes might test the
reach of Congress's power under the exceptions clause to
close off all review of a habeas petitioner’s complaint. But
this is not one of them. For every appellate door that
§ 2253(c)(1) closes, it leaves open several others that
allow inmates to seek relief from the Court. In this
respect, the provision bears a similarity to the sections of
the AEDPA at issue in Felker v. Turpin. Congress, there,
also precluded a petition for a writ of certiorari to review
a decision of a court of appeals exercising its gatekeeping
function over a successive habeas petition, but at the
same time did not repeal the Court's authority to enter-
tain an original petition for habeas corpus. Under those
statutory circumstances, the Court concluded, there “can

15

be no plausible argument that the Act has deprived this
Court of appellate jurisdiction in violation of Article III,
§ 2.” Id. at 2339.

The same conclusion applies with equal — indeed,
more — force here. Section 2253(c)(1) not only leaves open
the Court’s authority to entertain an original habeas
action, see 28 U.S.C. 2241, but also allows the Court itself
to entertain an application for a certificate of appeal-
ability. Authority to petition the Court directly for a
certificate also defuses the risk that the Court might
somehow lack authority to review lower-court decisions
that “adopted divergent interpretations of the gatekeeper
standard.” Felker, 116 S. Ct. at 2342 (Souter, J., joined by
Stevens, J., and Breyer, J., concurring). See id. (noting that,
in the absence of such review, “the question whether the
statute exceeded Congress’s Exceptions Clause power
would be open”). Because the same standard that governs
lower-court gatekeeping decisions also governs the
Court’s decision, the Court necessarily will resolve such
disputes through its own review of an application. As in
Felker, in short, there is “no plausible argument” that
Congress has exceeded its power under the Constitution
in this instance. Suggestions to the contrary (Pet. Br.
39-40) should be rejected.

II. Under The Plain Terms Of Sections 1254(1), 1651,
And 2253(c)(1), Congress Has Not Given The
Supreme Court Certiorari Power To Review Unsuc-
cessful Applications For A Certificate Of Appeal-
ability.

In addition to having the constitutional authority to
foreclose certiorari review of habeas corpus gatekeeping

16

decisions, Congress has in fact exercised that power here.
The relevant statutes provide as follows:

The Certificate-Of-Appealability Requirement:
“Unless a circuit justice or judge issues a certifi-
cate 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.” 28 U.S.C.
2253(c)(1).

The Certiorari Statute: “Cases in the courts of
appeals may be reviewed by the Supreme Court
by . . . writ of certiorari... . ” 28 U.S.C. 1254(1).

The All Writs Act: “The Supreme Court and all
courts established by Act of Congress may issue
all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the
usages and principles of law.” 28 U.S.C. 1651(a).

In word and design, this trio of laws prevents the
Court from exercising either statutory or so-called com-
mon law certiorari jurisdiction over Mr. Hohn’s petition.
First, in unbending terms, § 2253 erects a jurisdictional
gate to appellate review of all failed habeas petitions.
Such “an appeal may not be taken to the court of
appeals,” Congress has unequivocally mandated, save
when a judge or justice gives the inmate permission to do
so. The prerequisite of a certificate of appealability thus
prohibits any “case” from entering the appellate court
unless the right judge authorizes it. In the absence of
such a certificate, the case never enters - and therefore is
never “in” — the appellate court as required by § 1254(1).

17

Even aside from the prerequisite that a case be “in”
the court of appeals, the requirement of a certificate of
appealability under § 2253(c)(1) by itself ends all habeas
cases that do not obtain the requisite leave. The provision
is at once jurisdiction stripping and case ending. Con-
gress purposefully set up a two-step process for review-
ing district court habeas decisions, the first to screen
appeals that warrant further review, the second to review
deserving claims on the merits. The failure to meet the
threshold requirement both terminates the federal courts’
power to review the matter and the inmate’s power to
seek review of the district court decision elsewhere. The
case is over. The inmate cannot go back to district court to
obtain a final order; and he cannot correct any of the
other jurisdictional defects that might initially have pre-
cluded review. The manifest point of the statute is to
screen out meritless habeas appeals and finalize them.

Second, while it might be argued that Mr. Hohn’s
application for a certificate came into the court of appeals,
that is not the same as doing what Congress required of
him - to obtain permission to get his “case” in the appel-
late court. That, of course, never happened. And, to say
that Congress meant to use the word “case” in § 1254 to
allow certiorari review of certificate applications asks too
much of the operative words. Not only is it awkward to
think of a certificate-to-appeal-a-case as itself a “case,”
but that view makes even less sense in this statutory
setting. The same provision (§ 2253(c)(1)) that allows Mr.
Hohn to seek a certificate of appealability from the appel-
late court also allows him to seek one from the Supreme
Court. Having once permitted Mr. Hohn to seek review in

18

this Court via a certificate application, no rational expla-
nation exists for authorizing Court review of the court of
appeals’ certificate decision by certiorari under § 1254(1)
or for that matter under § 1651. The former option does
everything that the latter two options could possibly do
for him.

Apparently recognizing that a denied certificate at
the court of appeals level prevents the inmate from seek-
ing certiorari, Congress wisely created a safety valve. It
gave inmates permission to ask a justice (or the whole
Court if the justice refers the matter) for a certificate of
appealability, making certain that Congress’s efforts to
finalize meritless habeas appeals did just that, but only
that.

Third, still another component of the statutory
scheme bolsters this reading. When a prisoner seeks a
certificate of appealability, he must do so issue by issue.
That is to say, the application must detail “which specific
issue or issues” meet the gatekeeping requirement of “a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. 2253(c)(2) and (3). The court of appeals
therefore may grant inmates permission to appeal some
issues but not others. Yet, under that scenario, what hap-
pens next? May the inmate then seek statutory (or com-
mon law) certiorari of the denied issues while the court of
appeals proceeds to review the accepted issues? If so, that
imposes a unique two-track system of appellate review
that will spawn a host of administrative oddities that
Congress could not possibly have intended.

Take the problem of timing. Since petitioners have 90
days to file a writ, as well as ample time for opposition

19

and reply briefs, review of a certiorari petition custom-
arily takes a minimum of 5-6 months from the date of
decision, a minimum of 7-8 months when the petition
overlaps with the summer recess, and occasionally longer
(consider Mr. Hohn’s petition, which took almost 9
months). Similar delay would presumably plague a
§ 1651 common law writ of certiorari, particularly one
that (like Mr. Hohn’s) was conceived as and then filed in
the form of a statutory certiorari petition. See S. Ct. Rule
20.

In this setting, a court of appeals would face an
awkward dilemma: either wait for this Court’s certiorari
decision before proceeding with all issues entitled to
review, or bifurcate the case into the court-of-appeals-
approved issues first with the Supreme-Court-approved
issues to follow. No such dilemma arises, in conspicuous
contrast, when litigants hew to the application process
that Congress expressly created. Applications to the
Court customarily take days or at most weeks to review,
may be reviewed promptly during the summer recess,
and accordingly would not compel a two-track system of
review. While Congress perhaps could impose a bifur-
cated system of review on courts and litigants, it makes
little sense to credit the legislature with that disfiguring
intention when a more natural reading of the laws elimi-
nates any such requirement.

Fourth, Mr. Hohn cannot tenably shoehorn his case
into the language of the All Writs Act, which requires a
common law writ of certiorari to be “necessary” or
“appropriate” as well as to be “in aid” of the Court's
jurisdiction. Surely it is not necessary to use § 1651 here.
As Mr. Hohn well knows, indeed has now shown he

20

knows (Pet. Br. 45 n.34; Application by Arnold F. Hohn
for a Certificate of Appealability (Jan. 20, 1998)), an
inmate may permissibly file an application under
§ 2253(c)(1) to obtain a certificate of appealability from a
justice or (if referred) the Court. See Beavers v. Pruett, 118
S. Ct. 621 (1997) (referring application for a certificate of
appealability and a stay of execution to the Court). Just as
it is not necessary to review Mr. Hohn’s § 1651 request, it
is not appropriate to do so either. Congress already gives
inmates a procedure for ensuring that the certificate-
application process goes fairly. He has now taken advan-
tage of that option, making his efforts to expand § 1651
jurisdiction as inappropriate as they are gratuitous.

In addition to his inability to satisfy the necessary /
appropriate requirement, Mr. Hohn cannot show that his
§ 1651 writ is “in aid” of jurisdiction. That remains
implausible here since Mr. Hohn self-evidently is using
§ 1651 to create jurisdiction, not supplement it. It can
never be true that § 1651 is “in aid” of jurisdiction that
Congress elsewhere has expressly regulated and indeed
taken away. Finally, in light of the availability of the
certificate option, Mr. Hohn cannot meet another essen-
tial requirement. Under Supreme Court Rule 20(1), the
applicant must show something that Mr. Hohn has not -
“that adequate relief cannot be obtained in any other
form.”

III. Case Law Confirms This Interpretation.

0 OSs os ee ry « o@ ” > . 2 ee * * a ae

21

A. Longstanding Precedent Emphasizes That
Leave-To-Appeal Decisions May Not Be
Reviewed Under § 1254(1).

1. Several Decisions of The Court Support
This Interpretation.

House v. Mayo, 324 U.S. 42 (1945) (per curiam),
addressed this issue in a context similar to this one.
Confined in a State prison, the inmate filed a petition for
habeas corpus in federal district court. The district court
denied the petition, then denied a certificate of probable
cause for an appeal. The inmate next filed an application
for an appeal in forma pauperis but without requesting a
certificate of probable cause. The appellate court denied
the application, after which the inmate sought leave in
this Court to file a petition for certiorari.

The Court determined that it lacked power to issue a
statutory writ of certiorari. “Our authority under that
section,” the Court observed, “extends only to cases ‘in a
circuit court of appeals, or in the United States Court of
Appeals for the District of Columbia.’ ” Id. at 44. Because
“the case was never ‘in’ the court of appeals, for want of
a certificate of probable cause,” the Court continued, it
lacked jurisdiction to review the case under Congress’s
jurisdictional requirements. Id.

Most recently, in Davis v. Jacobs, 454 U.S. 911 (1981),
two members of the Court exchanged views about this
same question. While the dialogue between Justices
Rehnquist and Stevens failed to resolve whether the

* bn ce i a ln nn a ii ie ee a

22

court of appeals and accordingly could not be reviewed
under § 1254(1).

In the words of Justice Rehnquist: “[AJll” of the
Court’s cases “concede that there is no jurisdiction to
grant a writ of certiorari where both the District Court
and the Court of Appeals have denied a habeas corpus
petitioner a certificate of probable cause to appeal.” Id. at
915-19 (Rehnquist, J., joined by Burger, C.J., and Powell,
J., dissenting from the denial of certiorari). And in the
words of Justice Stevens: “Because none of the petitioners
obtained a certificate of probable cause, none of these
cases was properly ‘in’ the Court of Appeals and there-
fore 28 U.S.C. 1254 does not give this Court jurisdiction
over the petitions for certiorari.” Id. at 912-14 (Stevens, J.,
respecting the denial of certiorari). See also Jeffries v.
Barksdale, 453 U.S. 914 (1981) (“Since there was no certifi-
cate of probable cause issued in this case, it was never ‘in’
the Court of Appeals” and the Court therefore “cannot
review it by writ of certiorari to that court”) (Rehnquist,
J., joined by Burger, C.J., and Powell, J., dissenting from
the denial of certiorari); McCarthy v. Harper, 449 U.S. 1309
(1981) (Rehnquist, J., in chambers).

In several other decisions, the Court has followed
this course. In Bilik v. Strassheim, 212 U.S. 551 (1908), and
Ex Parte Patrick, 212 U.S. 555 (1908), the Court disposed of
two cases without opimion under a forerunner of § 2253.
At the time, Congress did not allow the Court to review
an unsuccessful habeas petition in the absence of a certifi-
cate of probablie cause issued by a justice of the Court or
of the federal district court that had denied the petition.
In the words of the 1908 statute, “no appeal to the
Supreme Court shall be allowed unless” the petitioner

23

makes the requisite showing. Against this backdrop, the
Court concluded that it lacked jurisdiction to allow direct
appeals in cases in which no certificate had issued.

Ferguson v. District of Columbia, 270 U.S. 633 (1926)
(per curiam), reached a like conclusion. At stake was
whether the Court had jurisdiction to review the refusal
of a justice of the court of appeals of the District of
Columbia to allow a writ of error to the police court of
the District. No such authority existed, the Court held,
and therefore denied a petition for a writ of certiorari
“for want of jurisdiction in this [CJourt.” Id. at 634. And
in In re 620 Church Street Bldg. Corp., 299 U.S. 24 (1936),
the Court declined to exercise its statutory certiorari
powers over a bankruptcy confirmation plan that the
court of appeals had declined leave to appeal. Because
the “Circuit Court of Appeals declined jurisdiction,” it
concluded that the case involved an “instance[ }] not cov-
ered by” the Court's jurisdiction under the certiorari
statute. Id. at 26. Cf. Kennedy v. Lainson, 323 U.S. 780
(1944) (denying “for want of jurisdiction” a petition for a
writ of certiorari to a district court). In the last analysis,
no opinion of the Court, nor for that matter a single
separate opinion of a justice, to amicus curiae’s knowl-
edge, has ever stated that the Court may use its statutory
certiorari power to review decisions denying leave to
appeal.

Nor has Congress made any changes to the pertinent
laws that could possibly alter these conclusions. For
example, in House and Davis, the statutory provision
regarding certiorari required the “case” to be “in” the
court of appeals, just as it does today. See Appendix. And
the relevant portions of the certificate-of-probable-cause

24

requirement in House and Davis resemble today’s certifi-
cate-of-appealability prerequisite. Both say that “an
appeal may not be taken” in the absence of permission
from the right judge. See Appendix.

What changes there have been, moreover, cement
these conclusions. In its current form, § 2253(c)(1)
requires a certificate of appealability, not one of probable
cause. Yet that only goes to emphasize the severity of the
screening function Congress has mandated. Likewise, the
predecessor of § 2253 at issue in House did not permit an
application to be filed with a justice of this Court, while
the modern version does. But that, too, offers little solace
to Mr. Hohn. That the inmate today may seek a certificate
of appealability from the Court under § 2253(c)(1) makes
all the more unnecessary the stretched reading of
§ 1254(1) that Mr. Hohn asks the Court to embrace.

2. Mr. Hohn’s Contrary Arguments Are Mis-
taken.

To all of this, Mr. Hohn offers several responses, each
unpersuasive. He first claims (Pet. 15-16) that the Court
in practice has not always adhered to these requirements.
There are several decisions, he points out, that issue writs
of certiorari to review denials of certificates of probable
cause; and there is one case (In re Burwell, 350 U.S. 521
(1956)), he adds, in which the Court exercised jurisdiction
over questions certified by the Ninth Circuit under the
predecessor to § 1254(2), even though the statute required
a “case” to be “in” the court of appeals and the appellate
court had denied leave to appeal. Yet neither this alleged
general practice nor the specifics of Burwell supply the

25

support Mr. Hohn needs. It is a basic principle of this
Court’s jurisprudence that “when questions of jurisdic-
tion have been passed on in prior decisions sub silentio,
this Court has never considered itself bound when a
subsequent case finally brings the jurisdictional issue
before us.” Hagans v. Lavine, 415 U.S. 528, 532 n.5 (1974).
See also FEC v. NRA Political Victory Fund, 115 S. Ct. 537,
542 (1994); Will v. Michigan Dept. of State Police, 491 U.S.
58, 63 n.4 (1989).

As the federal government acknowledges (Br. 26),
this venerable principle disposes of Mr. Hohn’s argu-
ment. Not one of the cases Mr. Hohn cites, including
Burwell, discusses the jurisdictional question, to say noth-
ing of mentioning the statutory language that governs it.
Any way one looks at it, Mr. Hohn’s reliance on a series
of orders and decisions that fail to address the jurisdic-
tional issue cannot support his position, let alone show
that the Court has indiscreetly overruled these earlier
rulings.

Next, Mr. Hohn argues (Pet. 35-36) that in Congress's
efforts to place additional restrictions on the appeal of
meritless habeas claims through passage of the AEDPA, it
somehow altered the House conclusion that inmates may
not seek certiorari under § 1254 to review a denied leave-
to-appeal. Another provision of the AEDPA, he points
out, specifically prohibits an unsuccessful petitioner from
filing a writ of certiorari, while section 2253 does not -
leading to the inference (he claims) that Congress meant
to allow certiorari review in one setting but not the other.
True, the AEDPA sets up a gatekeeping requirement for
first and successive federal habeas petitions. True also,

26

Congress specified that certiorari review was not avail-
able for successive gatekeeping decisions while declining
to reiterate the House conclusion for initial gatekeeping
decisions.

There, however, the comparison ends. The two set-
tings serve utterly distinct functions. With respect to the
first federal habeas setting, the gatekeeping provision
serves the certificate-of-probable-cause function
addressed in House: Does the inmate’s claim have suffi-
cient merit to warrant further review? In the successive
habeas setting, the gatekeeping provision serves a differ-
ent function. It asks not whether an appeal may proceed
but whether any petition at all may be filed. Under these
circumstances, Congress acted sensibly in tying a double,
as opposed to a single, statutory knot precluding cer-
tiorari review. While prior successive federal habeas peti-
tioners often faced stringent requirements, they never
faced a hurdle to any district court consideration at all.

Just as consequentially, the inmate seeking leave to
file a successive habeas petition has no option of filing an
application to the Supreme Court in the event the court of
appeals denies his or her request. In stark contrast, first
federal habeas petitioners may freely file an application
to the Court when the lower court denies leave. In the
first federal habeas setting, in other words, Congress had
little reason to worry about confirming that certiorari was
precluded. Not only did House already establish the
point, but the express provision for relief from the Court
through a certificate application supplied ample clarifica-
tion that the certificate, not certiorari, was the appropri-
ate vehicle for responding to a denied leave-to-appeal.

27

Far from supporting Mr. Hohn’s position, Lindh v.
Murphy, 117 S. Ct. 2059 (1997), undermines it. Lindh asked
whether a specific retroactivity provision in Chapter 154
of the Act (regarding capital cases) implied a lack of
retroactivity for a provision in Chapter 153 regarding the
standard for obtaining habeas relief. That was an apples-
to-apples comparison. For in that setting nothing about
the difference between the two provisions offered a
meaningful reason for Congress to specify a date-of-
application in one section but not the other, except to
imply (as Lindh concluded) that the new rules apply to
pending cases in the first but not the second setting. The
same cannot be said here. In the context of first federal
habeas, Congress clearly spelled out a procedure for
seeking relief from the Court when leave to appeal was
denied. Yet, in the successive habeas context, it chose not
to do so, making the drafter’s repetition wholly appropri-
ate and wholly without implication for the other setting.

That leaves a few other contentions that Mr. Hohn
has raised. What of the Court’s cases concluding that it
possesses jurisdiction to review decisions over which the
court of appeals may have lacked jurisdiction? Does not
review in that setting show that the Court has jurisdiction
to decide a case that has not been permitted “in” the
court of appeals? See, e.g., Pet. Br. 23-26; Nixon v.
Fitzgerald, 457 U.S. 731, 743 & n.23 (1982); United States v.
Nixon, 418 U.S. 683 (1974).

The analogy does not hold. When it comes to the
requirement of a final order, Congress has established a
policy of avoiding piecemeal appeals. That policy, how-
ever, only goes to the efficiency of appellate review, not
to the objective of terminating it altogether. In telling

28

contrast, the whole point of the gatekeeping requirement,
from its initial appearance in 1908 to the present, has
been to curb “frivolous habeas corpus petitions” by
requiring that a “prisoner first obtain a certificate of
probable cause to appeal before being entitled to do so.”
Barefoot v. Estelle, 463 U.S. 880, 893 n.3 (1983). See id. at 892
(“Congress established the requirement that a prisoner
obtain a certificate of probable cause to appeal in order to
prevent frivolous appeals from delaying the States’ abil-
ity to impose sentences”). See also Jeffries v. Barksdale, 453
U.S. 914, 916 (1981) (“the clear congressional purpose” of
section 2253 is “to impose the certificate-of-probable-
cause requirement as a means of terminating frivolous
appeals in certain habeas corpus cases”) (Rehnquist, J.,
joined by Burger, C.J., and Powell, J., dissenting from
denial of certiorari); Blackmun, Allowance of In Forma
Pauperis Appeals In Section 2255 and Habeas Corpus Cases,
43 F.R.D. 343, 351 (1967) (“a certificate of probable cause
is a requisite to an appeal”).

The Nixon cases merely teach that the Court has
power to assess its own jurisdiction. 457 U.S. at 743 n.23,
418 U.S. at 692. That is why the Court had jurisdiction
then to review the court of appeals’ interpretations of the
final-order doctrine and why the Court has jurisdiction
now to assess its authority to review Mr. Hohn’s petition.
But that does not say anything about whether jurisdiction
over the lower-court decision in fact exists - whether,
here, the Court in fact may review the court of appeals’
denial of Mr. Hohn’s application for a certificate of
appealability. Nothing about the Nixon cases undermines,
let alone overrules, House v. Mayo’s conclusion that the
Court lacks statutory-certiorari jurisdiction to review a

29

claimant’s failure to obtain leave to appeal. Still less
helpful are the cases reviewing denials of leave to appeal
in forma pauperis. See, e.g, Adkins v. E.I. DuPont de Nemours
& Co., 335 U.S. 331 (1948). They not only fail to address
the jurisidictional issue; but they relate to a statute that
by its terms is not designed to streamline and terminate
appeals, but rather to facilitate them.

As a final reason for overruling House v. Mayo, Mr.
Hohn argues (Pet. Br. 17-21) that certificate-of-appeal-
ability applications fall within the broad definition of
“case” and therefore meet the statutory requirements. But
even the broadest conceptions of the term, see, ¢.g., For-
syth v. Hammond, 166 U.S. 506 (1897), cannot make an
application-to-appeal-a-case itself a case. Nor at any rate
is it appropriate to lose sight of the overriding design of
§ 2253. Why would the legislature try to curb habeas
review by expanding it? What explanation, in other
words, could there possibly be for permitting applica-
tions to justices of the Court as well as certiorari jurisdic-
tion? A reading of §§ 1254(1) and 2253(c)(1) that permits
two-track review of denials for leave to appeal not only
would fail to curb the lack-of-finality problem that
prompted the legislation, Barefoot v. Estelle, 463 U.S. at
892-93, but would positively exacerbate the law’s delays -
by forcing governments and courts to consider two
(rather than just one) attempt at review and by leading to
multi-track review of the court-of-appeals-approved-

issues and the Supreme-Court-approved issues. See infra.
The national legislature deserves more credit than that.

30

B. Precedent Demonstrates That The Court May
Not Review An Application For A Certificate
Of Appealability Under The All Writs Act.

Besides lacking power to review Mr. Hohn’s petition
under its statutory certiorari authority, the Court also
lacks power to do so under the All Writs Act. Only the
most extraordinary circumstances warrant review under
the All Writs Act, and there is nothing extraordinary
about Mr. Hohn’s situation. Whatever the scope of the so-
called common law certiorari power under § 1651, more-
over, it does not empower the Court to create jurisdiction
that Congress has expressly addressed elsewhere or
indeed taken away.

1. Mr. Hohn’s Petition Raises No Urgency And
Asks The Court To Construe § 1651 To Cre-
ate Jurisdiction That Congress Has
Expressly Addressed Elsewhere.

Consistent with the text of the All Writs Act, the
Court has made clear that necessity remains a threshold
requirement for invoking power under the provision. The
“ ‘Act is a residual source of authority to issue writs that
are not otherwise covered by statute.’ ” Carlisle v. United
States, 116 S. Ct. 1460, 1467 (1996) (quoting Pennsylvania
Bureau of Correction v. United States Marshals Service, 474
U.S. 34, 43 (1985)). The Act at most “empowers federal
courts to fashion extraordinary remedies when the need
arises,” United States Marshals, 474 U.S. at 43; it does not
allow courts to use it “whenever compliance with statu-
tory procedures appears inconvenient or less appropri-
ate,” id. For these reasons, one seeking the writ must

Se ee em. ee

Co mee at a

31

meet the “burden of showing that its right to issuance of
the writ is ‘clear and indisputable.’ ” Bankers Life & Casu-
alty Co. v. Holland, 346 U.S. 379, 384 (1953) (quoting United
States v. Duell, 172 U.S. 576, 582 (1899)).

One test for discerning such urgency, the Court has
indicated, is the existence of “alternative means” for pro-
viding relief. United States Marshals, 474 U.S at 42 n.7.
“(W]hatever may be done without the writ,” in other
words, “may not be done with it.” Bankers Life & Casualty
Co. v. Holland, 346 U.S. 379, 383 (1953). See also Ex Parte
Peru, 318 U.S. 578, 584 (1943) (“[t]he common law writs,
like equitable remedies, . . . are usually denied where
another adequate remedy is available”). In accordance
with this requirement, the Supreme Court’s Rules warn
litigants that “[t]o justify the granting of any such writ,
the petition must show,” among other things, “that ade-
quate relief cannot be obtained in any other form or from
any other court.” S. Ct. Rule 20(1).

Whether one considers the general requirement of
“exceptional circumstances” or the more specific one of
“alternative” avenues of relief, Mr. Hohn comes up short
in either event. Above all else, Mr. Hohn’s position is
neither unusual nor dire because he may file an applica-
tion for a certificate of appealability with a justice of the
Court. This device provides all the individual relief any
inmate could need, most notably because it empowers the
Court to allow the appeal to proceed. The device also
authorizes the Court to clarify the meaning of the gate-
keeping standard, as the Court is free to (indeed must)
interpret the test in reviewing the application itself. In the
last analysis, while the All Writs Act no doubt provides
“extraordinary remedies,” they “are reserved for really

32

extraordinary causes.” Bankers Life & Casualty Co. v. Hol-
land, 346 U.S. 379, 385 (1953) (quotation omitted). This
simply is not one of them.

Mr. Hohn’s reliance on the All Writs Act fails for a
second, independent reason. While urgency may be a
necessary precondition for invoking the Act, the Court
has made clear that it is not by itself a sufficient explana-
tion for exercising power under the Act. Section 1651 thus
is a “residual source of authority to issue writs that are
not otherwise covered by statute. Where a statute speci-
fically addresses the particular issue at hand, it is that
authority, and not the All Writs Act, that is controlling.”
Carlisle v. United States, 116 S. Ct. at 1467 (1996) (quota-
tion omitted). The Court therefore has “rejected use of the
all writs provision to enable the Court to review a lower
court’s determination where jurisdiction did not lie under
an express statutory provision.” United States Marshals,
474 US. at 41.

Consistent with these views, Carlisle refused to allow
a litigant to rely on the All Writs Act to file a motion for a
judgment of acquittal one day after the time limit pre-
scribed by the Rules of Criminal Procedure. Even though
the delay was counsel’s fault, not the defendant's, and
even though the district court determined that it would
acquit the individual, the Court concluded that since Rule
29 “specifically addresses the particular issue at hand,”
the All Writs Act does not apply. 116 S. Ct. at 1467
(quotation omitted). In like manner, United States Mar-
shals declined to authorize a district court judge under
the Act to order federal marshals to transport State pris-
oners to testify as witnesses at a § 1983 hearing. Because
several federal statutes established procedures relating to

33

the “issue at hand,” the Court reversed the lower court
decision, relying on case law “reject[ing] use of the all
writs provision to enable the Court to review a lower
court’s determination where jurisdiction did not lie under
an express statutory provision.” 474 U.S. at 41 (citation
omitted).

This modern view rests on the shoulders of several
earlier cases. In U.S. Alkali Export Assn. v. United States,
325 U.S. 196, 203 (1945), for example, the Court came to a
similar conclusion:

The writs may not be used as a substitute
for an authorized appeal; and where, as here,
the statutory scheme permits appellate review
of interlocutory orders only on appeal from the
final judgment, review by certiorari or other
extraordinary writ is not permissible in the face
of the plain indication of the legislative purpose
to avoid piecemeal reviews.

U.S. Alkali, it is true, ultimately allowed review of a
non-final order by writ of certiorari. But it did so not
because the All Writs Act may be “used as a substitute for
an authorized appeal” but because the district court was
charged with exceeding a limitation placed on its jurisdic-
tion by Congress. Id. at 203-04. That explanation may just
as easily justify a writ of prohibition as distinct from one
of certiorari. At any rate, the exception is sound. For like
reasons, this Court could exercise its all writs power to
prevent a court of appeals from reviewing a first federal
habeas petition after leave to appeal had been denied. The
U.S. Alkali exception for lower courts that overstep their
jurisdictional boundaries, in other words, simply proves
the general rule.

34

Other cases invoke the general rule as well. See, ¢.g.,
De Beers Consolidated Mines, Ltd. v. United States, 325 U.S.
212, 217 (1945) (“When Congress withholds interlocutory
reviews, [the All Writs Act] can, of course, not be availed
of to correct a mere error in the exercise of conceded
judicial power”); Roche v. Evaporated Milk Assn., 319 USS.
21, 27-28 (1943) (the All Writs Act “may not be resorted to
as a mode of review where a statutory method of appeal
has been prescribed”) (“Where the appeal statutes estab-
lish the conditions of appellate review, an appellate court
cannot rightly exercise its discretion to issue a writ whose
only effect would be to avoid those conditions and thwart
Congressional policy”); United States v. Beatty, 232 U.S.
463, 467-68 (1914) (the common law writ of certiorari may
not be used as a substitute for an authorized appeal); In re
Commonwealth of Massachusetts, 197 U.S. 482, 488 (1905)
(“in cases over which we possess neither original nor
appellate jurisdiction we cannot grant . . . certiorari as
ancillary thereto”); McClung v. Silliman, 19 U.S. (6 Wheat.)
598, 601-02 (1821) (the Act was “intended” only to “vest
the power . . . in cases where the jurisdiction already
exists, and not where it is to be courted or acquired, by
means of the writ proposed to be sued”); McIntire v.
Wood, 11 U.S. (7 Cranch) 504 (1813). As these cases illus-
trate, the Act does not empower the Court to exercise
jurisdiction that Congress has elsewhere expressly
addressed.

In light of this case law, Mr. Hohn may not use the
All Writs Act to escape the requirements of §§ 2253 and
1254. From 1908 forward, Congress has been steadfast in

35

curbing frivolous habeas cases by enacting and reenact-
ing legislation that denies inmates leave to appeal merit-
less claims. Plainly, this is a case in which there is not just
one, but two, “express statutory provision[s]” that
already address the jurisdictional issue. Just as Mr. Hohn
could not use the All Writs Act to sidestep the 90-day
limitation for filing a statutory petition for a writ of
certiorari, see 28 U.S.C. 2101(c), he may not use it to
circumvent the requirements of §§ 2253 and 1254.

A reading of § 1651 that allows inmates to escape the
jurisdictional imperatives of these specific provisions also
slights the singlemindedness of Congress’s efforts to curb
endless habeas review. It presumes that the same govern-
ment body with stewardship over §§ 2253(c)(1) and
1254(1) somehow meant to defeat these efforts through
§ 1651. And, worse, it transforms the All Writs Act from a
“sparingly exercised” (Parr v. United States, 351 U.S. 513,
520 (1956)) “residual source of authority” concerning
cases within the Court’s jurisdiction (Carlisle v. United
States, 116 S. Ct. 1460, 1467 (1996)) into a roving “source
of jurisdiction.” No cases support this view, and several
positively reject it. The invitation should be rejected, the
Court’s cases preserved, and Congress’s sensible and
express legislative design left intact.

2. Neither House v. Mayo Nor Any Other Deci-
sion Alters This Conclusion.

Neither House v. Mayo nor any of the other cases
upon which Mr. Hohn and the federal government have
relied alter this conclusion. No doubt, from all that
appears on the face of House v. Mayo, there would seem to

36

be little reason to adhere to the first half of the opinion
(which precludes jurisdiction under § 1254(1)) while dis-
regarding the second (which permits jurisdiction under
§ 1651). But an examination of the statutes at issue in
House eliminates any such inconsistency.

When the Court decided House in 1945, all three
pieces of this statutory puzzle were in place - the gate-
keeping requirement, the All Writs Act and the certiorari
statute. Yet, while the All Writs Act and § 1254 paralleled
in meaningful respects the language of the statutes today,
see Appendix, the same cannot be said about the gate-
keeping requirement. Unlike the modern version of
§ 2253, the 1945 law did not permit an application to a
justice of the Supreme Court. It allowed leave only from
“the United States court by which the final decision was
rendered or a judge of the circuit court of appeals.” 28
U.S.C. 466 (1940); see Appendix.

The change in law is dispositive, first because it
eliminates any urgency, and second because it (together
with the AEDPA) supplies the kind of “express statutory”
direction that precludes reliance on the All Writs Act.
Nothing about Mr. Hohn’s situation today compares with
the predicament that Mr. Mayo faced in 1945. Once the
court of appeals denied leave to appeal, Mr. Mayo had
nowhere to go but the All Writs Act to correct a seem-
ingly mistaken interpretation of the gatekeeping require-
ment. Mr. Hohn, of course, has no such problem. He may
file an application with a justice of the Court, which at
once provides a congressionally-approved method for
dispensing individual justice and a vehicle for ensuring
uniform treatment of the gatekeeping standard. Under
these circumstances, Mr. Hohn cannot tenably claim that

37

he is asking the Court to do something Congress has
authorized under the Act, which is to say “fashion
extraordinary remedies when the need arises.” United
States Marshals, 474 U.S. at 43. Whether such urgency
existed in 1945 or not, it plainly does not exist today.

Likewise, by specifically granting inmates the option
of seeking leave to appeal from this Court in 1948 and by
enacting the detailed - and more stringent — provisions of
the AEDPA in 1996, Congress supplied the kind of delib-
erate statutory direction that precludes resort to the All
Writs Act. As the cases frequently repeat, the Act may not
“enable the Court to review a lower court's determination
where jurisdiction did not lie under an express statutory
provision.” United States Marshals, 474 U.S. at 41. The
specifics of § 2253 regarding the path for reviewing
habeas corpus petitions, coupled with the prescribed
route for seeking review under § 1254, make continued
existence of a statutory-common-law writ of certiorari as
anachronistic in this setting as it is confusing.

Like House v. Mayo, each of the other cases upon
which the federal government and Mr. Hohn rely either
fail to address the jurisdictional issue or involve a situa-
tion in which the requirements of § 1651 had been met. In
In re 620 Church Street, 299 U.S. 24 (1936), for instance, the
Court invoked the Act to review a district court’s con-
firmation of a plan of bankruptcy reorganization. But it
did so not just because statutory certiorari jurisdiction
did not exist (that would vest jurisdiction over any lower
court order), but because the “auxiliary process” of the
writ was “a means of giving full force and effect to
existing appellate authority and of furthering justice in
other kindred ways.” Id. at 26 (emphasis added) (internal

38

quotation omitted). Unlike a bankruptcy reorganization
plan, which the Court may later review after a final order
has been obtained, no “existing appellate authority” is
available over the denial of a leave to appeal — unless or
until a judge or justice grants leave. Without such leave,
in other words, a habeas case terminates under federal
law, while a bankruptcy case does not.

Nor, under these circumstances, may even such an
agreeable standard as “furthering justice” assist Mr.
Hohn. He cannot show that a single injustice has come
his way until the Court denies his application. The
greater the injustice he claims at the hands of the court of
appeals, moreover, the less likely the Court will deny an
application. The same problem exists under — and defeats
- other broad characterizations of the standard for using
the writ - e.g., “its use must only be ‘reasonably neces-
sary in the interest of justice.’ ” U.S. Br. 32 (quoting Adams
v. United States ex rel. McCann, 317 U.S. 269, 274 (1942)).
Even a test of reasonable necessity must meet the Court's
own rules for granting extraordinary writs, which require
a showing that “adequate relief cannot be obtained in any
other form.” S. Ct. R. 20(1). The certificate option defeats
any such showing.

Policy considerations also do not favor altering this
congressional framework. Surely a court of appeals’ gate-
keeping decision “in violation of equal protection or
other fundamental constitutional principles” (U.S. Br. 30)
will not stand in the way of an application decision by
this Court reminding lower courts of the correct stan-
dard. Contrary to Mr. Hohn’s suggestion (Br. 30), more-
over, once a justice refers such an application to the
whole Court, the Court plainly may issue a decision that

39

constitutes “binding precedent.” Nor is the application
process that Congress created “a clumsy and burden-
some” way (U.S. Br. 32) for ensuring uniform interpreta-
tion of the gatekeeping standard or for preserving the
Court's ultimate right to review the merits of a habeas
petition. In this case, for example, how does the applica-
tion relief to which Mr. Hohn may be entitled differ in
any meaningful way from the grant-vacate-remand order
that the Solicitor General has proposed? Both simply
prevent the case from being terminated, and both orders
may convey as little or as much direction as the Court
wishes. Such concerns at any rate are best addressed to
the members of Congress, who are sure to reply that the
system of review they have allowed represents a vast
improvement on the two-track system that review by
common law certiorari and certificate application would
compel.

IV. Mr. Hohn’s Other Arguments Exceed The Scope Of
The Question Presented, And Have Been Waived.

Mr. Hohn also asks (Br. 40-49) the Court to treat his
petition as an application for a certificate of appealability,
and to consider whether the certificate requirement
should apply to him even though he filed his appeal after
the AEDPA became effective. Both requests should be

rejected.

In each respect, Mr. Hohn seeks to expand the scope
of the narrow jurisdictional question that the Court asked
to be briefed and argued. Neither one of these conten-
tions, moreover, was mentioned in the petition for a writ
of certiorari, and one (application of the gatekeeping

40

standard to the appeal) was not even raised below. Mr.
Hohn’s petition plainly assumed that the gatekeeping
requirement applies. Indeed, the thrust of the petition
was that the Court should grant certiorari to resolve a
lower-court division of authority over the meaning of the
test. On this record, the Court properly granted certiorari
to review a jurisdictional question that assumes the appli-
cability of the Act to this appeal. It is wholly appropriate
to continue to resolve the petition on that assumption,
since Mr. Hohn initiated it and the Court had every
reason to accept it. See Bray v. Alexandria Women’s Health
Clinic, 506 U.S. 263, 280 (1993) (observing that “the Peti-
tion for Certiorari (not the Brief in Opposition and later
briefs) . . . determines” scope of the petition); Parker v.
Randolph, 442 U.S. 62, 77 (1979) (plurality) (“Although
petitioner sought review of this ruling, our grant of cer-
tiorari was limited to the [one] issue”).

Nor will Mr. Hohn suffer any discernible harm if the
Court declines to convert the petition into an application
to a justice or the Court. No time restrictions curb Mr.
Hohn’s authority to file an application. He remains free
to file one after the jurisdictional issue has been resolved,
or he may file a protective application (as he now has
done) in the event he loses the jurisdictional issue.
Because he was recently placed on parole (Pet. Br. 4), he
also has regained one of the most vital interests that a
§ 2255 motion seeks to vindicate. At all events, because
Mr. Hohn now has filed an application to Justice Thomas
for a Certificate of Appealability, amicus curiae intends to
seek leave of Court to file a response to the application,
which would seem to be the proper jurisdictional route
for addressing these matters.

41

One might fairly ask what difference all this makes.
Does it really matter whether the Court has jurisdiction to
review this matter under its statutory certiorari powers,
as Mr. Hohn claims, under its common-law certiorari
powers, as Mr. Hohn and the federal government claim,
or under its certificate-of-appealability powers, as the
parties and amicus curiae agree?

The question, of course, does matter: It implicates the
Court’s unique and most essential power. At stake is
whether Congress vested the Court with jurisdiction to
review Mr. Hohn’s petition, then (if it did) whether fed-
eral prosecutors violated the United States Constitution
in convicting Mr. Hohn. Rightly appreciating that
“[flederal courts are courts of limited jurisdiction” that
“possess only that power authorized by Constitution and
statute,” Kokkonen v. Guardian Life Ins. Co. of America, 511
U.S. 375, 377 (1994), the Court long has been careful to
avoid “expand|[ing] by judicial decree” the statutory juris-
diction that Congress has given it, id.

In modestly “presum[ing] that a cause lies outside
this limited jurisdiction,” the Court has placed the “bur-
den of establishing the contrary” “upon the party assert-
ing jurisdiction.” Kokkonen, 511 U.S. at 377 (citing McNutt
v. General Motors Acceptance Corp., 298 U.S. 178, 182-83
(1936)). See also Durousseau v. United States, 10 US. (6
Cranch) 307, 314 (1810). This self-deprecating “practice of
strict construction of statutes authorizing appeals,” the
Court has emphasized, “dictates that we not give an
expansive interpretation” of such laws. Fornaris v. Ridge
Tool Co., 400 U.S. 41, 42 n.1 (1976) (per curiam). Even

42

when “there is a present need to expand the jurisdiction
of [the federal] courts,” the Court has reminded litigants
that it will not “overlook the fact that the Constitution
specifically vests that power in the Congress, not in the
courts.” Snyder v. Harris, 394 U.S. 332, 341-42 (1969).

This custom of jurisdictional self-restraint makes
sense for the branch of government responsible for
reviewing every other branch’s compliance with the rule
of law. By erring on the side of denying for itself rather
than seizing power, by ensuring in other words compli-
ance with the Constitution’s delegation of authority to
Congress to regulate the Court’s appellate jurisdiction,
the Court “teaches the whole people by its example.”
Olmstead v. United States, 277 U.S. 438, 485 (1928)
(Brandeis, J., dissenting).

More than just example, however, explains the
Court’s discretion in this area. When the Court interprets
grants of authority from Congress to itself, it wears two
hats: It not only must construe the reach of power, but it
then may exercise it as well. That distinguishes the dis-
pute from all others in which the Court referees the
extent of legislative or constitutional delegations of
power. For example, when the Court construes a grant of
power, say, to executive agencies, it remains appropriate
to draw inferences from congressional ambiguity in favor
of jurisdiction for the executive branch. See Chevron,
U.S.A. v. Natural Resources Defense Council, 467 U.S. 837
(1984). But, when the Court construes congressional
grants of authority to itself, it acts as a referee and a
player, making reticence uniquely appropriate. In the
end, no rule of construction in favor of jurisdiction for the
Court, or any other type of default rule (compare Pet. Br.

43

34-35, 40; U.S. Br. 14), applies here. If anything, the
Court’s careful practices point precisely in the opposite
direction.

In the final analysis, however, default rules and other
ambiguity crutches are not needed to resolve this dispute.
The unmistakable words of the provisions themselves
make clear that Mr. Hohn has just one mechanism, not
three, for obtaining leave to appeal. It is the certificate of

appealability that Congress explicitly provided by enact-
ing 28 U.S.C. 2253(c)(1).

S

CONCLUSION

For the foregoing reasons, the Court should dismiss
the petition for lack of jurisdiction.

Respectfully submitted,

Jerrrey S. SUTTON

30 E. Broad Street
17th Floor

Columbus, Ohio 43215
(614) 466-8980

Court-appointed Amicus Curiae

January 1998

A-1

APPENDIX
I. The Gatekeeping Provision
A. 1908

That from a final decision by a court of the
United States in a proceeding in habeas corpus
where the detention complained of is by virtue
of process issued out of a State court no appeal
to the Supreme Court shall be allowed unless
the United States court by which the final deci-
sion was rendered or a justice of the Supreme
Court shall be of opinion that there exists proba-
ble cause for an appeal, in which event, on
allowing the same, the said court or justice shall
certify that there is probable cause for such
allowance.

Act of March 10, 1908, ch. 76, 35 Stat. 40.

B. 1925

From a final decision by a court of the United
States in a proceeding in habeas corpus where
the detention complained of is by virtue of pro-
cess issued out of a State court no appeal to the
circuit court of appeals shall be allowed unless
the United States court by which the final deci-
sion was rendered or a judge of the circuit court
of appeals shall be of opinion that there exists
probable cause for an appeal, in which event, on
allowing the same, the said court or judge shall
certify that there is probable cause for such
allowance.

Act of February 13, 1925, ch. 229, §§ 6(d), 13, 43 Stat. 940,
942; 28 U.S.C. 466.

A-2

C. 1948

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 certifi-
cate of probable cause.

A-3

The Certiorari Statute

A. 1891

And excepting also that in any such case as
is hereinbefore made final in the circuit court of
appeals it shall be competent for the Supreme
Court to require, by certiorari or otherwise, any
such case to be certified to the Supreme Court
for its review and determination with the same

Act of June 25, 1948, ch. 646, § 2253, 62 Stat. 967, 28 U.S.C. power and authority in the case as if it had been
2253. carried by appeal or writ of error to the

Supreme Court.

Act of March 3, 1891, ch. 517, § 6, 26 Stat. 828.
D. 1996 To Present

(c)(1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be B. 1911

taken to the court of appeals from - In any case, civil or criminal, in which the

judgment or decree of the circuit court of
appeals is made final by the provisions of this
Title, it shall be competent for the Supreme
Court to require, by certiorari or otherwise,
upon the petition of any party thereto, any such
(B) the final order in a proceeding under case to be certified to the Supreme Court for its
section 2255. review and determination, with the same power
and authority in the case as if it had been car-
(2) A certificate of appealability may issue ried by appeal or writ of error to the Supreme
under paragraph (1) only if the applicant has Court.

made a substantial showing of the denial of a
constitutional right.

(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

Act of March 3, 1911, ch. 231, § 240, 36 Stat. 1157.

(3) The certificate of appealability under para-
graph (1) shall indicate which specific issue or Cc. 1925
issues satisfy the showing required by para-

graph (2). In any case, civil or criminal, in a circuit

court of appeals, or in the Court of Appeals of
the District of Columbia, it shall be competent

28 U.S.C. 2253(c) (Supp. II 1996).
~ oe ' for the Supreme Court of the United States,

Act of February 13, 1925, ch. 229, § 240(a), 43 Stat. 938.

28 U.S.C. 1254(1); see Act of June 27, 1988, Pub. L. 100-352,
§ 2(a), 102 Stat. 662; Act of June 25, 1948, ch. 646, 62 Stat.

928.

A-4

upon the petition of any party thereto, whether
Government or other litigant, to require by cer-
tiorari, either before or after a judgment or
decree by such lower court, that the cause be
certified to the Supreme Court for determination
by it with the same power and authority, and
with like effect, as if the cause had been brought
there by unrestricted writ of error or appeal.

D. 1988 To Present

Cases in the courts of appeals may be reviewed
by the Supreme Court by the following
methods:

(1) By writ of certiorari granted upon the
petition of any party to any civil or criminal
case, before or after rendition of judgment
or decree;

The All Writs Act
A. 1789

That all the before-mentioned courts of the
United States shall have power to issue writs of
scire facias, habeas corpus, and all other writs
not specially provided for by statute, which may
be necessary for the exercise of their respective
jurisdictions, and agreeable to the principles
and usages of law.

Judiciary Act of 1789, § 14, 1 Stat. 81.

-

B. 1911

The Supreme Court and the district courts
shall have power to issue writs of scire facias.
The Supreme Court, the circuit courts of
appeals, and the district courts shall have power
to issue all writs not specifically provided for by
statute, which may be necessary for the exercise
of their respective jurisdictions, and agreeable to
the usages and principles of law.

Act of March 3, 1911, ch. 231, § 262, 36 Stat. 1162.

C. 1949 To Present

The Supreme Court and all courts estab-
lished by Act of Congress may issue all writs
necessary or appropriate in aid of their respec-
tive jurisdictions and agreeable to the usages
and principles of law.

28 U.S.C. 1651(a); Act of May 24, 1949, ch. 139, § 90, 63
Stat. 102.

IV. Supreme Court Rule 20.1

Issuance by the Court of an extraordinary writ autho-
rized by 28 U.S.C. 1651(a) is not a matter of right, but of
discretion sparingly exercised. To justify the granting of
any writ, the petition must show that the writ will be in
aid of the Court’s appellate jurisdiction, that exceptional
circumstances warrant the exercise of the Court's discre-
tionary powers, and that adequate relief cannot be
obtained in any other form or from any other court.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0098%3A13. Public record. Not legal advice.