This question itself is the subject of a circuit split, according to petitioner Corey Berry, who is challenging his conviction for using a gun during an attempted carjacking.
The Antiterrorism and Effective Death Penalty Act of 1996 bars appeals of federal habeas decisions unless a circuit judge or justice issues a certificate of appealability, which requires a "substantial showing" that the prisoner has been denied a constitutional right.
In Berry's case, he argued that the Eleventh Circuit denied him a certificate of appealability based on binding circuit precedent concerning a burden-of-proof issue. However, that precedent is the subject of a circuit split, he argued.
Berry asked the high court whether circuit courts should grant certificates of appealability when the issue the prisoner seeks to raise on appeal has been resolved against him by binding circuit precedent but has been resolved in his favor by another circuit.
In 2013, Berry held a gun against the back of a man's head and tried to carjack him, but fled after he was unable to start the car, according to the government's brief. Minutes later, he threatened a group of people gathered near a car and drove off with their vehicle, the brief said.
Berry later pled guilty to one count of attempted carjacking, one count of brandishing a firearm during a crime of violence and one count of carjacking. A district judge in the Southern District of Florida sentenced him to 218 months in prison.
In 2016, Berry sought to vacate his conviction for brandishing a firearm during a crime of violence, saying the definition of a "crime of violence" was unconstitutionally vague. The district court denied his claim and declined to issue a certificate of appealability.
In 2023, the Eleventh Circuit granted Berry authorization to file a second postconviction challenge. The district court denied his second motion to vacate the conviction, and the Eleventh Circuit denied a certificate of appealability in February.
In March, Berry petitioned the high court for certiorari, arguing that he should have been granted a certificate of appealability because his appeal implicated a circuit split.
The federal government has opposed the petition, contending in its brief that review was unwarranted because denying a certificate of appealability of a claim foreclosed by binding circuit precedent does not prejudice defendants. The government also argued that Berry failed to raise some arguments on direct appeal, and that his claim was time-barred.
In May, the National Association of Criminal Defense Lawyers and a group of six former federal judges submitted amicus briefs in support of Berry's petition.
The NACDL cited the high court's 2003 opinion in Miller-El v. Cockrell to argue certificates of appealability are warranted when "reasonable jurists could debate" whether the petition should have been resolved differently. The claim can be debatable even if judges do not believe the petitioner will prevail, the group said. Denying a certificate of appealability shuts down the entire appellate process, the group said.
"No counsel is appointed," according to the group's amicus brief. "No briefing occurs. No opportunity arises to test or distinguish precedents, to sharpen a conflict, or to generate cert-worthy vehicles. One side of a circuit split is locked out before the appellate process begins."
It argued that Berry's proposal to allow for a certificate of appealability when a constitutional claim raises a circuit split "preserves the pipeline through which legal questions are tested, conflicts are refined, and certiorari vehicles are developed." To do otherwise would entrench local precedent and make it more difficult for the high court to resolve circuit splits.
The six former federal judges argued that the certificate of appealability standard was intended to curb frivolous and vexatious litigation, not to shut the door to appellate review of issues that have divided circuit courts.
Berry is represented by Hector Dopico, Andrew Adler, and Janice Bergmann of the Federal Public Defender's Office.
The government is represented by John Sauer of the U.S. Department of Justice.
The case is Corey Duran Berry v. U.S., case number 25-7026, in the Supreme Court of the United States.
--Editing by Nicole Bleier and Michael Watanabe.
Update: This article has been updated with background information.
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