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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 110377
Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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District Court for Alaska denied Certificate of Appealability

Customer Question

District Court for Alaska denied Certificate of Appealability following denial of 2255 motion. I filed notice of appeal in DC. Informal briefing package was received from both DC and 9th USCOA. Paid $455 fee. Info from 9th states "A briefing schedule will not be set until the court determines whether a certificate of appealability should issue."

Question: Do I file a brief in support of the petition for certificate of appealability now OR wait for action from the 9th?
Submitted: 5 years ago.
Category: Criminal Law
Expert:  Law Educator, Esq. replied 5 years ago.
Actually, because the District Court denied the certificate, you need to file a memorandum in support of your appeal for the issuance of the certificate explaining your grounds for the appeal and your case law in support of your argument.

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Customer: replied 5 years ago.
The 9th has assigned a number and you advise a memorandum in support should be filed with the clerk of the 9th circuit. Is there a time limit?
Expert:  Law Educator, Esq. replied 5 years ago.
Yes, if you do not file a memo in support, they will simply review your application without it based on whatever the District Court used as grounds to deny appeal. The time limit is that you need to file the memo before the court decides the appealability issue.
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Customer: replied 5 years ago.
Verify the 9th will use the 32 page application for the certificate with 21 page attachment I filed pro se in the district court I think the claims are well argued and documented. I did not cite supporting case law but used case phraseology.
Would a memorandum repeating the arguments be overkill?
Expert:  Law Educator, Esq. replied 5 years ago.
It is not overkill if you did not cite case law. This is a big issue the courts take with pro se litigants, they do not follow the proper procedure. You need to at least amend your 21 page attachment citing proper case law and not just using "case phraseology." The court wants the case citations, so if you believe you made your arguments in the 21 page attachment, then you need to review that and insert your case law so it is a proper brief.
Customer: replied 5 years ago.
Expert:  Law Educator, Esq. replied 5 years ago.
You are welcome.