Photo Credit: Amir Hamja, Photograph of the Supreme Court of the United States Courtroom in Washington, D.C., USA, in Abbie VanSickle, Behind the Curtain at the Supreme Court, The New York Times (June 24, 2024) https://www.nytimes.com/interactive/2024/06/27/us/supreme-court-chamber-photos.html.
Authored by: Grace Waters
When Lance Shockley’s life sentence was affirmed on direct appeal, he did what thousands of prisoners do each year: he filed a federal habeas corpus petition challenging his conviction.[1] When the district court denied relief, one judge on a three-judge panel of the Eighth Circuit voted to grant him a certificate of appealability.[2] That is the threshold showing required to appeal a habeas denial.[3] But the other two judges disagreed, and under Eighth Circuit practice, Shockley’s appeal was dismissed.[4] Had Shockley been imprisoned just across the Mississippi River in Illinois, within the Seventh Circuit’s jurisdiction, that single judge’s vote would have been enough to grant him full appellate review.[5]
This is not a hypothetical. Federal prisoners face dramatically different standards for accessing appellate review depending on where they are incarcerated.[6] A deep and entrenched circuit split has divided the federal courts over a deceptively simple question: when three judges consider whether to grant a certificate of appealability, must all three agree to deny it, or can two judges outvote one? The answer determines whether prisoners receive meaningful appellate review or have the courthouse door slammed shut based on geography alone.
To understand the stakes, we must first understand the certificate of appealability itself. Federal habeas corpus, also known as “the Great Writ,” serves as the fundamental safeguard against unlawful imprisonment.[7] Yet Congress has long recognized that not every habeas claim merits full appellate review. In 1908, concerned with frivolous habeas petitions delaying executions, Congress required prisoners to obtain a “certificate of probable cause” before appealing.[8]
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) transformed this requirement, renaming it the “certificate of appealability” and modifying the substantive standard.[9] Under 28 U.S.C. § 2253(c)(1), “unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken” from a final habeas order.[10] The statute requires prisoners to make “a substantial showing of the denial of a constitutional right.”[11] Specifically, it is a showing that “reasonable jurists could debate whether . . . the petition should have been resolved in a different manner.”[12]
The Court has emphasized that the certificate determination is “a threshold inquiry” separate from the merits.[13] Courts must not “sidestep this process by first deciding the merits of an appeal, and then justifying denial of a COA based on adjudication of the actual merits.”[14] The standard is forgiving: prisoners need not show they will ultimately prevail, only that their claims are debatable among reasonable jurists.[15]
This threshold inquiry serves a vital filtering function. More than 92 percent of certificate requests are denied, but approximately six percent of granted certificates lead to relief on the merits.[16] The certificate process thus winnows frivolous claims while preserving meaningful review for debatable constitutional issues.[17]
The statute’s language—”a circuit justice or judge”—suggests that a single judge may grant a certificate.[18] But what happens when the matter goes to a three-judge panel and the judges disagree? Here the circuits have fractured into two camps.
The Third, Fourth, Seventh, and Ninth Circuits have adopted local rules providing that if any single judge on a panel believes the prisoner has satisfied the certificate standard, the certificate must issue.[19] Third Circuit Local Appellate Rule 22.3 states explicitly: “A certificate of appealability will issue if any judge on a panel . . . is of the opinion that the applicant has made the showing required by 28 U.S.C. § 2253.”[20] The Fourth Circuit adopted identical language in Local Rule 22(a), explaining that this approach ensures conformity with § 2253(c) and avoids improperly conflating the certificate inquiry with full merits review.[21] The Seventh and Ninth Circuits have similarly interpreted the statute to permit fewer than three judges to act on certificate applications.[22]
By contrast, the Fifth,[23] Eighth,[24] Tenth, and Eleventh Circuits permit a panel majority to deny a certificate even when one judge votes to grant it. The Eleventh Circuit has explicitly held that “a single COA judge’s order is not binding on a merits panel” and that the certificate test is “purely objective,” meaning no individual judge’s view controls.[25] The Tenth Circuit has denied certificates over dissenting votes without extended discussion, treating majority denial as routine practice.[26]
The practical implications of this circuit split are profound. First and most obviously, prisoners in single-judge circuits have meaningfully greater access to appellate review. When any one judge finds a claim debatable, the prisoner receives full briefing, oral argument, and merits consideration.[27] In majority-vote circuits, that same claim dies at the threshold if two judges disagree.
Second, certificate grants frequently trigger appointment of counsel for indigent prisoners. The Court has recognized that certificate denial “deprives indigent litigants of the opportunity for a counseled appeal.”[28] When majority-vote circuits deny certificates over dissenting votes, they deprive prisoners not only of appellate review but of the legal representation necessary to present their claims effectively.[29]
Third, the circuit split undermines the uniformity that federal habeas corpus is meant to provide. The Great Writ exists precisely to ensure a federal forum for constitutional claims, guarding against the risk that state procedural rules will “founder in a ‘procedural morass.’”[30] Yet the current circuit split reintroduces geographic disparities at the federal level, creating the very inconsistency habeas corpus was designed to remedy.
Moreover, the Court has stressed that the certificate standard is forgiving and that “a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.”[31] The majority-vote rule inverts this logic: if three judges must agree a claim is debatable, then by definition at least one judge has concluded the claim lacks merit. But the statute asks whether reasonable jurists could disagree,[32] not whether these particular three judges do disagree.
The constitutional dimensions of habeas corpus also counsel in favor of the single-judge rule. The Suspension Clause protects the availability of habeas corpus except in cases of rebellion or invasion.[33] While the certificate requirement itself is constitutional, procedural rules that systematically narrow access to habeas review raise serious constitutional concerns. The single-judge rule better honors the Great Writ’s “extraordinary prestige” and its role in vindicating due process.[34]
The Court should resolve this circuit split in favor of the single-judge rule.[35] Doing so would restore uniformity to federal habeas practice, eliminate geographic disparities, and honor Congress’s choice to vest certificate authority in individual judges rather than panels. It would ensure that when a federal judge—sworn to uphold the Constitution—finds a prisoner’s claim debatable, that prisoner receives the appellate review Congress intended.
[1] Shockley v. Vandergriff, 145 S. Ct. 894, 897 (2025) (Sotomayor, J., dissenting from denial of certiorari).
[2] 145 S. Ct. at 895; see Shockley v. Crews, No. 24-1024, slip op. at 1 (8th Cir. Sep 19, 2025) (Kelly, J., concurring) (expressing belief that Shockley was entitled to further review on his ineffective assistance of counsel claim).
[3] 28 U.S.C. § 2253(c)(1).
[4] Shockley, 145 S. Ct. at 896-97.
[5] See id. at 895 (noting that a single judge’s vote to grant his certificate in the Seventh Circuit, along with three other circuits, would have permitted Shockley’s appeal to proceed).
[6] See id. (emphasizing significant consequences of the circuit split for prisoners’ appellate access).
[7] Harris v. Nelson, 394 U.S. 286, 290-91 (1969).
[8] Act of Mar. 10, 1908, ch. 76, 35 Stat. 40; Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 892 (1983), n. 3.).
[9] Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996).
[10] 28 U.S.C. § 2253(c)(1).
[11] Id.
[12] Slack v. McDaniel, 529 U.S. 473, 484 (2000).
[13] Miller-El, 537 U.S. at 326.
[14] Id. at 336-37.
[15] Slack, 529 U.S. at 484; Miller-El, 537 U.S. at 327; Barefoot, 463 U.S. at 893, n. 4.
[16] McGee v. McFadden, 588 U.S. 923, 927 (2019) (Sotomayor, J., dissenting from denial of certiorari).
[17] Id. at 927; Miller-El, 537 U.S. at 337.
[18] 28 U.S.C. § 2253(c)(1); see Shockley, 145 S. Ct. at 895 (emphasizing statutory text specifying “a circuit justice or judge.”).
[19] 145 S. Ct. at 895.
[20] Rule 22.3 (CA3 2011).
[21] Rule 22(a)(3) (CA4 2023); see Reid v. True, 349 F.3d 788, 796 (4th Cir. 2003), cert. denied, 549 U.S. 1097 (2004) (describing 4th Cir. R. 22(a), adopted in wake of Miller-El, which provides, inter alia, that three-judge panel’s consideration of request to issue or expand COA will “determine whether the appellant has made the showing required by § 2253(c) but will not consider the ultimate question of whether the claim has merit”).
[22] Thomas v. United States, 328 F. 3d 305, 309 (7th Cir. 2003); Gen. Order 6.3(b) (CA9 2024).
[23] See Jordan v. Fisher, 576 U.S. 1071, 1076 (2015) (Sotomayor, J., dissenting) (arguing that the “Fifth Circuit should have granted a certificate of appealability, though the claim was foreclosed by a Fifth Circuit precedent, because judges elsewhere had found the same claim reasonably debatable.”).
[24] See Crews, No. 24-517 (dismissing Shockley’s capital habeas appeal when one judge voted to grant the certificate).
[25] Griffin v. Sec’y, 787 F.3d 1086, 1095 (11th Cir. 2015) (“[P]roviding that single judge’s COA order is ‘subject to review by the court’”) (citing 11th Cir. R. 27-1(d)(2); see Griffin, 787 F.3d at 1095 (‘“A ruling on a motion…by a single judge…is not binding upon the panel to which the appeal is assigned on the merits, and the merits panel may alter, amend, or vacate it.’”) (citing 11th Cir. R. 27-1(g)).
[26] See United States v. Rith, 778 F. App’x 612, 612-13 (10th Cir. 2019), per curiam (Bacharach, J., dissenting) (denying a certificate of appealability after a panel majority vote and concluding that the appellant’s motion was “indisputably untimely” under binding circuit precedent); see also Rith, 778 F. App’x at 613-14 (Bacharach, J., dissenting) (arguing that appellant “satisfied the low threshold for a certificate of appealability” because “reasonable jurists could consider the underlying issue debatable if presented to the en banc court.”).
[27] Shockley, 145 S. Ct. at 895.
[28] Id.
[29] See id. (“Moreover, the grant of a certificate of appealability often marks the appointment of counsel, so its denial generally deprives indigent litigants of the opportunity for a counseled appeal.”).
[30] Harris, 394 U.S. at 292 (quoting Price v. Johnston, 334 U.S. 266, 269 (1948)).
[31] Miller-El, 537 U.S. at 338.
[32] Id. at 327.
[33] U.S. Const. art. I, § 9, cl. 2.
[34] Fay v. Noia, 372 U.S. 391, 401-02 (1963).
[35] See Shockley, 145 S. Ct. at 895-97 (concluding that she would have granted certiorari to resolve the split, arguing that “[t]here are good reasons to think that Congress conditioned the right to an appeal on a single judge’s vote” and that there are “problems with the Eighth Circuit’s contrary [majority-rule] approach” to voting on certificates of appealability).