     20-221
     Lasher v. United States

 1                              In the
 2                  United States Court of Appeals
 3                             FOR THE SECOND CIRCUIT
 4
 5
 6                                 AUGUST TERM 2019
 7                                    No. 20-221
 8
 9                                    LENA LASHER,
10                                 Petitioner - Appellant,
11
12                                           v.
13
14                             UNITED STATES OF AMERICA,
15                                Respondent - Appellee.
16
17
18    On Motions for a Certificate of Appealability and for Leave to File
19        an Oversized Motion for a Certificate of Appealability
20
21
22                              SUBMITTED: AUGUST 5, 2020
23                              DECIDED: AUGUST 11, 2020
24

25
26   Before:        PARK, NARDINI, and MENASHI, Circuit Judges.

27          Appellant Lena Lasher, pro se, moves for a certificate of
28   appealability and for leave to file an oversized motion for a certificate
29   of appealability. In her appeal, Lasher seeks to challenge an order of
30   the district court denying a certificate of appealability. Under
31   28 U.S.C. § 2253, “[i]n a habeas corpus proceeding or a proceeding
32   under section 2255 before a district judge, the final order shall be
 1   subject to review, on appeal, by the court of appeals for the circuit in
 2   which the proceeding is held.” We determine, sua sponte, that we lack
 3   jurisdiction to hear Lasher’s appeal because a district court’s order
 4   denying a certificate of appealability is not an appealable final order.
 5   Accordingly, we dismiss the appeal for lack of jurisdiction and deny
 6   Lasher’s motions as moot.

 7
 8
 9                Lena Lasher, Danbury, CT, pro se.
10
11                Won S. Shin, Daniel C. Richenthal, Assistant United
12                States Attorneys, for Audrey Strauss, Acting United
13                States Attorney for the Southern District of New York,
14                New York, NY, for Appellee.
15
16
17   PER CURIAM:

18         Lena Lasher, proceeding pro se, moves for a certificate of
19   appealability and for leave to file an oversized motion for a certificate
20   of appealability. In her appeal, she challenges an order of the district
21   court denying a certificate of appealability. The issue before us is
22   whether that order is appealable. It is not. Accordingly, we dismiss
23   the appeal for lack of jurisdiction and deny Lasher’s motions as moot.

24                              BACKGROUND

25         In 2015, Lasher was convicted of conspiracy to misbrand drugs
26   held for sale in violation of 18 U.S.C. § 371, of introducing misbranded
27   drugs into interstate commerce in violation of 21 U.S.C. §§ 331(a) and
28   333(a)(2) and 18 U.S.C. § 2, of conspiracy to commit mail and wire
29   fraud in violation of 18 U.S.C. § 1349, and of committing mail and
30   wire fraud in violation of 18 U.S.C. §§ 1341, 1343, and 2. She was
31   sentenced principally to three years’ imprisonment. United States v.


                                        2
 1   Lasher, 661 F. App’x 25, 26 (2d Cir. 2016). This court affirmed the
 2   judgment. Id. at 29. On July 28, 2017, Lasher challenged her sentence
 3   under 28 U.S.C. § 2255. That statute authorizes “prisoner[s] in
 4   custody under sentence of a court established by Act of Congress” to
 5   “move the court which imposed the sentence to vacate, set aside or
 6   correct the sentence.” 28 U.S.C. § 2255(a). In her motion, Lasher
 7   asserted several grounds for relief, including that the evidence at trial
 8   was insufficient to convict her, that the government failed to disclose
 9   exculpatory evidence, and that her counsel was ineffective. The
10   district court denied Lasher’s motion. Lasher v. United States, No. 17-
11   CV-5925, 2018 WL 3979596, at *10 (S.D.N.Y. Aug. 28, 2018) (“For the
12   foregoing reasons, Lasher’s petition is denied without a hearing.
13   Because Lasher has not made a substantial showing of the denial of a
14   constitutional right, a certificate of appealability will not issue.”).

15         Lasher appealed the denial of her § 2255 motion. While that
16   appeal was pending, she filed numerous motions in the district court.
17   Those motions included a request for an evidentiary hearing, a
18   motion seeking documents from the government, a motion for a new
19   trial, and a motion to alter or amend the judgment of the district court.
20   The district court denied the motions in an order entered on April 8,
21   2019. Lasher then filed another motion seeking an evidentiary
22   hearing. On October 21, 2019, the district court denied that motion as
23   well. Lasher appealed from each of these orders and, in each case,
24   sought a certificate of appealability from this court. See Local R.
25   22.1(a). Consolidating these appeals with her appeal from the denial
26   of her § 2255 motion, we denied her motions and dismissed the
27   appeals. Lasher v. United States, No. 18-2693, 2020 WL 1170713 (2d Cir.
28   Jan. 15, 2020). On December 18, 2019, the district court issued an order
29   denying certificates of appealability for the April 8 and October 21
30   orders. In a timely filed notice of appeal, Lasher challenges only that




                                          3
 1   order. In the motions before us, she asks us to issue a certificate of
 2   appealability and grant her permission to file an oversized motion.

 3                                 DISCUSSION

 4         “In a … proceeding under section 2255 … the final order shall
 5   be subject to review, on appeal, by the court of appeals for the circuit
 6   in which the proceeding is held.” 28 U.S.C. § 2253(a); id. § 2255(d)
 7   (“An appeal may be taken to the court of appeals from the order
 8   entered on the motion as from a final judgment on application for a
 9   writ of habeas corpus.”). “Unless a circuit justice or judge issues a
10   certificate of appealability, an appeal may not be taken to the court of
11   appeals from the final order in a proceeding under section 2255.” Id.
12   § 2253(c)(1)(B); Fed. R. App. P. 22(b)(1) (“In a … 28 U.S.C. § 2255
13   proceeding, the applicant cannot take an appeal unless a circuit justice
14   or a circuit or district judge issues a certificate of appealability under
15   28 U.S.C. § 2253(c).”). Because Lasher seeks to appeal an order
16   denying a certificate of appealability, the question before us is
17   whether such an order is an appealable “final” order under § 2253.
18   Several courts have held that it is not. 1 One court, however, has held




     1 See United States v. Futch, 518 F.3d 887, 891 (11th Cir. 2008) (noting that
     “Futch filed a notice of appeal from the district court’s denial of a COA”
     and “this Court dismissed that appeal for lack of jurisdiction because the
     district court’s order denying Futch a COA was not an appealable order”);
     Sims v. United States, 244 F.3d 509, 509 (6th Cir. 2001) (“[W]e conclude that
     the rule concerning certificates of appealability should be the same as the
     rule governing certificates of probable cause, and we hold that an order
     denying a certificate of appealability is not appealable.”); United States v.
     Badru, No. 04-3045, 2004 WL 1683113, at *1 (D.C. Cir. July 27, 2004) (per
     curiam) (“[A]n order denying a certificate of appealability is not
     independently appealable.”); Cannan v. Hutchins, 479 F. App’x 756, 756 (9th
     Cir. 2012) (“[T]he denial of a COA is not in itself appealable.”).


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 1   that an order denying a certificate of probable cause—the predecessor
 2   to the certificate of appealability—is an appealable final order. 2

 3         In determining whether an order is “final” for purposes of
 4   § 2253, our interpretation of the phrase “final order” should “be
 5   guided by the meaning of ‘final decision[]’ in 28 U.S.C. § 1291.” Jones
 6   v. Braxton, 392 F.3d 683, 685 (4th Cir 2004). Under § 1291, “[a] final
 7   decision is one that ‘ends the litigation on the merits and leaves
 8   nothing for the court to do but execute the judgment.’” Bridgeport
 9   Guardians, Inc. v. Delmonte, 537 F.3d 214, 221 (2d Cir. 2008) (quoting
10   Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978)). Applying that
11   principle, we conclude that it is the decision denying § 2255 relief—
12   not the decision denying a certificate of appealability—that is a final
13   order for purposes of § 2253(a). In an order denying § 2255 relief, the
14   district court determines whether the petitioner has met her burden
15   of demonstrating that her sentence was unlawful; in doing so, the
16   judge ends the litigation on the merits before that court.

17         By contrast, an order denying a certificate of appealability does
18   not end litigation on the merits. Rather, it decides only whether the
19   court, having already concluded that the § 2255 motion is without
20   merit, believes the motion to be so baseless that no reasonable jurist
21   could differ with the court’s disposition. See 28 U.S.C. § 2253(c)(2) (“A
22   certificate of appealability may issue … only if the applicant has made
23   a substantial showing of the denial of a constitutional right.”); Slack v.
24   McDaniel, 529 U.S. 473, 484 (2000) (“[A] substantial showing of the
25   denial of a constitutional right … includes showing that reasonable
26   jurists could debate whether … the petition should have been
27   resolved in a different manner.”). Because the decision to deny a


     2See Flores v. Procunier, 745 F.2d 338, 339 (5th Cir. 1984) (holding that a
     “district court’s denial of a certificate of probable cause is a final and
     appealable post judgment order” because it “concludes the case”).


                                         5
 1   certificate of appealability does not end litigation on the merits, it is
 2   not an appealable final order.

 3         That conclusion finds support in Federal Rule of Appellate
 4   Procedure 22(b). The rule expressly provides that “[i]f the district
 5   judge has denied the certificate, the applicant may request a circuit
 6   judge to issue it.” Fed R. App. P. 22(b)(1). In authorizing an applicant
 7   to seek a certificate from a circuit judge in the event of a denial by the
 8   district court, the Rule indicates that an appeal from the denial is
 9   unavailable.

10         Moreover, the rule refers to the certificate and the
11   accompanying statement “described in Rule 11(a) of the Rules
12   Governing Proceedings Under 28 U.S.C. § 2254 or § 2255.” Id. Rule
13   11(a) provides that a district court “must issue or deny a certificate of
14   appealability when it enters a final order adverse to the applicant.”
15   Rule 11(a), Rules Governing Section 2255 Proceedings for the United
16   States District Courts. That language distinguishes between the entry
17   of a final order and the denial of a certificate. Rule 11(a) also clarifies
18   that “[i]f the court denies a certificate, the parties may not appeal the
19   denial but may seek a certificate from the court of appeals under
20   Federal Rule of Appellate Procedure 22.” Id. (emphasis added).

21         For these reasons, we agree with those courts that have
22   concluded that the denial of a certificate of appealability is not itself
23   appealable. See supra note 1.

24         The Fifth Circuit’s decision in Flores, by contrast, is
25   unpersuasive. In Flores, the issue was whether a district court had the
26   authority to grant a certificate of probable cause—the predecessor to
27   the certificate of appealability—after both it and the court of appeals
28   had denied it. In concluding that the district court lacked that
29   authority, the Fifth Circuit asserted that an order denying a certificate
30   of probable cause was an appealable final order because “a party


                                         6
 1   denied the certificate cannot appeal the district court’s denial of the
 2   writ of habeas corpus, although he may seek a certificate from the
 3   court of appeals.” Flores, 745 F.2d at 339. The Fifth Circuit’s conclusion
 4   is irreconcilable with the version of Rule 22(b) then in effect. At the
 5   time Flores was decided, Rule 22(b) provided that “[i]f an appeal is
 6   taken by the applicant, the district judge who rendered the judgment
 7   shall either issue a certificate of probable cause or state the reasons
 8   why such a certificate shall not issue.” Latella v. Jackson, 817 F.2d 12,
 9   13 (2d Cir. 1987). As we observed in Latella, Rule 22(b)’s “specific
10   timetable” permitted the district court to issue or deny a certificate
11   only after an appeal had already been taken. Id. Because an appeal
12   may be taken only from a final (or appealable collateral) order, it
13   cannot be that the order denying a certificate of probable cause—an
14   order which necessarily issues only after a notice of appeal was filed—
15   was itself an appealable final order. 3

16                                 CONCLUSION

17          For the foregoing reasons, we conclude that an order denying
18   a certificate of appealability is not an appealable final order.




     3 Our holding does not call into question the longstanding rule, embodied
     in Federal Rule of Appellate Procedure 22(b)(2), that “if no express request
     for a certificate is filed, the notice of appeal constitutes a request addressed
     to the judges of the court of appeals.” Similarly, we construe pro se
     “submissions liberally and interpret them to raise the strongest arguments
     they suggest.” Wright v. C.I.R., 381 F.3d 41, 44 (2d Cir. 2004); see also Cook v.
     N.Y. State Div. of Parole, 321 F.3d 274, 277 (2d Cir. 2003) (construing a pro se
     notice of appeal as a motion for a certificate of appealability); Marmolejo v.
     United States, 196 F.3d 377, 378 (2d Cir. 1999) (per curiam) (construing a pro
     se motion for a certificate of appealability as a notice of appeal). Because
     Lasher already sought (and was denied) a certificate of appealability in her
     appeal of the order denying § 2255 relief, we decline to construe her notice
     of this appeal as seeking a certificate.


                                            7
1   Accordingly, we dismiss the appeal for lack of jurisdiction and deny
2   Lasher’s motions as moot.




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