IN RE APPLICATION OF BURWELL

U.S. | 1956-04-02
No. 736
350 U.S. 521 Supreme Court of the United States (1956) Caution
Also reported at: 100 L. Ed. 2d 666 · 76 S. Ct. 539 · 1956 U.S. LEXIS 1166 · SCDB 1955-050
Cited by 62 cases

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Synopsis

The Supreme Court held that Courts of Appeals have jurisdiction under 28 U.S.C. § 2253 to entertain applications for certificates of probable cause addressed to the court itself rather than to individual judges, but declined to prescribe the specific procedures the court must follow in considering such applications. The Court determined that each Court of Appeals may determine for itself whether such applications should be considered by a panel, an individual judge, or through another appropriate method within its discretion.

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Per_curiam
Per Curiam.

Per Curiam.

The Court of Appeals for the Ninth Circuit has certified to this Court the following three questions:

“(1) Has Congress created in the Court of Appeals, as a court, the jurisdiction to issue a certificate of probable cause, sought from the court, as a court, by the provisions of 28 U. S. C. § 2253, replacing the repealed 28 U. S. C. § 466?

“(2) If the Supreme Court holds that Congress has not given the Courts of Appeal such jurisdiction, did the Supreme Court create that jurisdiction, by its per curiam opinion, rendered without argument, which failed to consider 28 U. S. C. § 2253 and was based on the repealed 28 U. S. C. § 466 and House v. Mayo, 324 U. S. 42, 48 (1945), and its remand to this court ‘so that the petitioner’s application for a certificate of probable cause may be entertained on its merits’?

“(3) If the Supreme Court holds that Congress or the Court creates such jurisdiction by 28 U. S. C. § 2253 and that House v. Mayo applies, does its mandate mean that all the judges, as judges, or some individual judge, or the court as a court shall consider the petition for a certificate of probable cause?”

Earlier this Term we were constrained to find that the Court of Appeals for the Ninth Circuit was in error in deeming itself without jurisdiction to entertain applications for certificates of probable cause, under 28 U. S. C. § 2253, addressed to that court instead of to a judge or judges thereof. Accordingly, we reversed the judgments in these cases. Burwell v. Teets, 350 U. S. 808; Rogers v. Teets, 350 U. S. 809. Each of these cases was reversed “so that the petitioner’s application for a certificate of probable cause may be entertained on its merits.”

We did not attempt to lay down a procedure for the Court of Appeals to follow for the entertainment of such applications on their merits. We shall not do so now. It is for the Court of Appeals to determine whether such an application to the court is to be considered by a panel of the Court of Appeals, by one of its judges, or in some other way deemed appropriate by the Court of Appeals within the scope of its powers. Cf. Western Pacific R. Corp. v. Western Pacific R. Co., 345 U. S. 247. It is not for this Court to prescribe how the discretion vested in a Court of Appeals, acting under 28. U. S. C. § 2253, should be exercised. See United States v. Rosenburgh, 7 Wall. 580. As long, as that court keeps within the bounds of judicial discretion, its action is not reviewable.

The entire certificate in each of these cases must be

Dismissed.

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Citator

Cited By (23 total)

  • Barefoot v. Estelle, 463 U.S. 880 (U.S. 1983)
    …ses. The only consolation I can find in today’s decision is that the primary responsibility for selecting the appropriate procedures for these appeals lies, as the Court itself points out, ante, at 892, with the courts of appeals. Cf. In re Burwell, 350 U. S. 521, 522 (1956) (per curiam). Notwithstanding the profoundly disturbing attitude reflected in today’s opinion, I am hopeful that few circuit judges would ever support the adoption of [*916] procedures that would afford less consideration to an appeal in…
  • Hohn v. United States, 524 U.S. 236 (U.S. 1998)
    …es and the uniform practice of the courts of appeals to construe § 2253(e)(1) as conferring the jurisdiction to issue certificates of appealability upon the court of appeals rather than by a judge acting under his or her own seal. See In re Burwell, 350 U. S. 521, 522 (1956). Some early cases from this Court acknowledged a distinction between acting in an administrative and a judicial capacity. When judges perform administrative functions, their decisions are not subject to our review. United States v. Ferr…
  • Dixon v. State, 388 F.2d 424 (5th Cir. 1968)
    …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 certificate of probable cause.” See House v. Mayo, 1945, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739; In re Burwell, 1956, 350 U.S. 521, 76 S.Ct. 539, 100 L.Ed. 666. Cf. United States ex rel. Rheim v. Foster, 2 Cir. 1949, 175 F. 2d 772; Helms v. Sacks, 6 Cir. 1960, 278 F. 2d 687; Gay v. Graham, 10 Cir. 1959, 269 F. 2d 482. Therefore, we shall proceed to the second issue, exhaustion…

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