THOMAS D. ARTHUR, PETITIONER-APPELLEE,
v.
MICHAEL HALEY, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, RESPONDENT-APPELLANT
PER CURIAM: Respondent has filed a motion to vacate the stay of execution entered by the district court. The grounds on which the stay was granted include a threshold jurisdictional question under the Antiterrorism and Effective Death Penalty Act (“AED-PA”), the resolution of which may require an evidentiary hearing. See Dist. Ct. Order at 15 (“[T]here may be ... claims that carry the potential to invoke equitable tolling. Without proper briefing, perhaps a hearing, and sufficient opportunity to contemplate the various claims and their implications vis-a-vis the limitations period, the court cannot permit the execution to go forward.”).
Under these circumstances, we do not find that the district court has abused its discretion. See Hauser v. Moore, 223 F. 3d 1316, 1321 (11th Cir.), cert. dismissed, 530 U.S. 1293, 121 S.Ct. 14, 147 L.Ed.2d 1038 (2000).
Accordingly, the motion to vacate or dissolve the stay is DENIED. . While neither party has raised the issue of whether we have subject matter jurisdiction over this case, we are obliged to address the issue sua sponte. See Rembert v. Apfel, 213 F. 3d 1331, 1333-34 (11th Cir.2000) ("As a federal court of limited jurisdiction, we must inquire into our subject matter jurisdiction sua sponte even if the parties have not challenged it.”). Appeals from decisions in habe-as corpus cases, whether filed pursuant to 28 U.S.C. § 2255 (for federal prisoners) or § 2254 (for state prisoners), are governed by 28 U.S.C. § 2253.
Section 2253(c)(1) provides that an appeal may only be taken from a final order in a habeas corpus proceeding if a Certificate of Appealability ("COA”) has been issued. The question thus presented is whether the state is required to obtain a COA before appealing, and if so, whether a COA is required on interlocutory appeal. Prior to the passage of AEDPA, § 2253 required that a petitioner for habeas relief obtain a certificate of probable cause (“CPC”).
Under that provision, this circuit held "that it is not necessary for a state or its representative to obtain a [CPC] in order to take an appeal to the Court of Appeals from a final order granting a writ.” State v. Graves, 352 F. 2d 514, 515 (5th Cir.1965) (per curiam).
Subsequently, Rule 22 of the Rules of Appellate Procedure was amended to state this rule. "A [COA] is not required when a state or its representative or the United States or its representative appeals.” Fed. R.App.P. 22(b)(3).
See also United States v. Pearce, 146 F. 3d 771, 773 (10th Cir.1998) (citing both Rule 22 and Graves in a § 2255 appeal to hold that the government need not obtain a COA).
Because, the state is not required to obtain a COA for an appeal from a final order, it logically does not need to obtain a COA for an interlocutory appeal.
Accordingly, we have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) governing interlocutory appeals from the grant of injunctive relief.
Cases With Similar Vibessemantic neighbors from the corpus
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Arthur v. King, 500 F.3d 1335 (11th Cir. 2007)…e Arthur, 821 So. 2d 251 (Ala.2001) (“Arthur X’) for 27 April 2001. On 20 April 2001, Arthur filed a federal petition for writ of habeas corpus. The district court granted a stay of execution. We denied a motion to vacate the stay, Arthur v. Haley, 248 F. 3d 1302, 1303 (11th Cir.2001) (per curiam) (“Arthur XI”), and the Supreme Court denied an application to vacate the stay of execution of sentence of death. Haley v. Arthur, 532 U.S. 1004, 121 S.Ct. 1676, 149 L.Ed.2d 655 (2001) (“Arthur XII”). The federal di…
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Arthur v. Allen, 452 F.3d 1234 (11th Cir. 2006)…ourt stayed the federal petition for writ of habeas corpus pending the Alabama courts’ disposition of his state petition for postconviction relief and granted a stay of execution. On appeal, we denied the motion to vacate the stay. Arthur v. Haley, 248 F. 3d 1302, 1303 (11th Cir.2001) (per curiam) (“Arthur XI”). Following the dismissal of Arthur’s state postconviction petition, Arthur filed a memorandum in support of his federal ha-beas petition. In the memorandum, Arthur argued that his untimely claims sh…
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Thomas v. Crosby, 371 F.3d 782 (11th Cir. 2004)…ther it was appropriate for this court to have exercised its discretionary authority in this particular case. We are clearly obligated to raise questions concerning our subject-matter jurisdiction sua sponte in all cases. See, e.g., Arthur v. Haley, 248 F. 3d 1302, 1303 n. 1 (11th Cir.2001) (‘While neither party has raised the issue of whether we have subject matter jurisdiction over this case, we are obliged to address the issue sua sponte”). We may raise nonjurisdictional issues sua sponte in habeas proce…
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- Hauser v. Moore, 223 F.3d 1316 (11th Cir. 2000)
- Rembert v. Apfel, 213 F.3d 1331 (11th Cir. 2000)
- Chaffee v. Johnson, 352 F.2d 514 (5th Cir. 1965)
- In re Gibbs, 530 U.S. 1293 (U.S. 2000)
- Steinhauser v. Hawkins, 530 U.S. 1293 (U.S. 2000)