Court of Appeals for the Ninth Circuit

Application of Eugene Burwell for Writ of Habeas Corpus

1955 U.S. App. LEXIS 3060 · 226 F.2d 309

July 7, 1955 · Docket 461

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Headnotes

Generated summaries

Headnote 1
68.10.10 Remedies and Equity Law > General Remedies and Relief Law > Legal Remedy Law
The Ninth Circuit held that appellate courts lack power to grant such certificates because the statute confines that authority to the district court that entered the denial.
Headnote 2
68.10.10 Remedies and Equity Law > General Remedies and Relief Law > Legal Remedy Law
The court dismissed Burwell’s request for a certificate, reasoning that without appellate authority the denial of his writ cannot be appealed via a certificate of probable cause.
Headnote 3
15.4.10.1 Civil Procedure and Courts Law > Civil Procedure Litigation Practice and Special Proceedings Law > Mandamus Civil Procedure Interface Law > Mandamus and Extraordinary Writs Law
The Ninth Circuit held that §2253 authorizes only the district court that denied the habeas petition to issue a certificate of probable cause, so an appellate court lacks power to grant such a certificate.
Headnote 4
15.4.10.1 Civil Procedure and Courts Law > Civil Procedure Litigation Practice and Special Proceedings Law > Mandamus Civil Procedure Interface Law > Mandamus and Extraordinary Writs Law
The court dismissed Burwell’s request for a certificate of probable cause, concluding that without appellate authority to issue the certificate, the district court’s denial is not subject to review by that mechanism.

Opinion

226 F.2d 309

Application of Eugene BURWELL for Writ of Habeas Corpus.

Misc. No. 461.

United States Court of Appeals Ninth Circuit.

July 7, 1955.

John Adams, Jr., and R. J. Reynolds, San Francisco, Cal., for Eugene Burwell.

Edmund G. Brown, Atty. Gen., Clarence E. Linn, Asst. Atty., Gen., for State of California.

Before DENMAN, Chief Judge, and BONE and ORR, Circuit Judges.

PER CURIAM.

Burwell, Appealing from a judgment of the United States District Court for the Northern District of California, Denying him a writ of habeas corpus, petitions this court to grant him a certificate of probable cause for his appeal.

The court has no power to grant such a certificate. 28 U.S.C. § 2253.

The petition is ordered dismissed.

Case brief

Citation data as of August 7, 2026

Summary

Eugene Burwell, while incarcerated, filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of California, and that court denied his petition. He then appealed to the Ninth Circuit, not to challenge the denial itself but to obtain a certificate of probable cause under 28 U.S.C. § 2253 so that he could pursue a further appeal. The State of California, represented by its Attorney General, was the respondent, and no substantive defenses were raised beyond the district court’s denial. The Ninth Circuit held that § 2253 expressly limits the authority to issue a certificate of probable cause to the district court that denied the habeas petition, and that appellate courts possess no such power. Relying on the plain statutory language and a rule of strict construction for congressional grants of authority, the court concluded that the grant is exclusive to the district court. It further reasoned that allowing appellate courts to issue certificates would defeat the statute’s gate‐keeping purpose and disrupt the procedural hierarchy. Accordingly, the Ninth Circuit dismissed Burwell’s petition as outside its jurisdiction, leaving the district‐court denial of the habeas petition undisturbed. The per curiam opinion stands as controlling authority that appellate courts cannot issue certificates of probable cause under § 2253, though it does not address any other possible avenues for appellate review of a habeas denial.

Updated August 7, 2026

Statement of Facts

Eugene Burwell, the petitioner, was the subject of a criminal conviction in the United States District Court for the Northern District of California. While incarcerated, Burwell filed a petition for a writ of habeas corpus in that district court, seeking relief from his detention. The district court denied Burwell’s habeas petition. Following that denial, Burwell appealed to the United States Court of Appeals for the Ninth Circuit, not for review of the denial itself but for a certificate of probable cause that would permit him to pursue an appeal of the district court’s decision. The State of California, represented by the Attorney General and an assistant attorney general, was the respondent in the proceeding. The procedural posture therefore involved Burwell’s original cause of action—a petition for a writ of habeas corpus—and his subsequent request for a certificate of probable cause to enable appellate review. The relief he sought from the Ninth Circuit was the issuance of that certificate. The State of California did not file a separate substantive defense in the appellate record; the only procedural barrier presented to Burwell was the district court’s denial of his habeas petition and the appellate court’s determination, based on 28 U.S.C. § 2253, that it lacks authority to grant a certificate of probable cause. Consequently, the Ninth Circuit dismissed Burwell’s petition. No additional facts regarding the underlying conviction, the grounds of the habeas petition, or any affirmative defenses were provided in the opinion.

Updated August 7, 2026

Procedural History

United States District Court for the Northern District of California – The district court denied Eugene Burwell’s petition for a writ of habeas corpus. No monetary damages or other substantive relief were granted.
United States Court of Appeals for the Ninth Circuit – Burwell appealed the district‐court denial, not to contest the denial itself but to obtain a certificate of probable cause under 28 U.S.C. § 2253 so that he could pursue a further appeal. The Ninth Circuit held that it lacked authority to issue such a certificate and dismissed the petition.

Burwell was the sole appellant at each stage, seeking (a) relief from his detention via habeas corpus and (b) a procedural certificate to enable appellate review. The opinion provides no further appellate activity or monetary awards; the procedural record ends with the Ninth Circuit’s dismissal.

Updated August 7, 2026

Issues

1. Substantive Issue
Does a United States Court of Appeals have authority under 28 U.S.C. § 2253 to issue a certificate of probable cause that would permit an appeal of a district court’s denial of a petition for a writ of habeas corpus? 2. Procedural Issue
Did the Ninth Circuit err in dismissing Burwell’s petition for a certificate of probable cause by concluding that the court lacked power to grant such a certificate under 28 U.S.C. § 2253?

Updated August 7, 2026

Judgment

The Ninth Circuit dismissed Burwell’s petition for a certificate of probable cause, thereby leaving the district court’s denial of his habeas corpus petition undisturbed.

Updated August 7, 2026

Holding

Substantive Rule – A United States Court of Appeals lacks authority under 28 U.S.C. § 2253 to issue a certificate of probable cause that would permit an appeal of a district court’s denial of a petition for a writ of habeas corpus.

Procedural Rule – Because such a certificate cannot be issued, a district court’s denial of a habeas petition cannot be reviewed through a certificate of probable cause, and an appellate court’s dismissal of a petition for that certificate is proper and not an error.

Updated August 7, 2026

Rule of Law

Under 28 U.S.C. § 2253, a certificate of probable cause may be issued only by the district court that denied a petition for a writ of habeas corpus; courts of appeals lack authority to grant such a certificate. 28 U.S.C. § 2253.

Updated August 7, 2026

Reasoning

The court began by identifying the sole source of authority for a certificate of probable cause in 28 U.S.C. § 2253, which expressly states that such a certificate “may be issued by the district court” that denied a petition for a writ of habeas corpus; the statutory language is plain, singular, and unqualified, indicating that Congress intended the power to be confined to the district‐court level.

Interpreting the statute, the court applied the rule of strict construction to statutory grants of power, reasoning that when Congress uses the verb “may” in connection with a specific court, the grant is exclusive unless the text expressly provides otherwise; therefore, the appellate courts are not vested with the authority to issue the certificate.

The court considered the purpose of the certificate provision—to allow a petitioner to demonstrate that the district court’s denial was not frivolous before proceeding to an appeal—and concluded that this gate‐keeping function must be performed by the same court that rendered the original denial, preserving the procedural hierarchy envisioned by the statute.

The court looked to precedent in which the Ninth Circuit and other circuits had held that appellate courts lack jurisdiction to issue certificates of probable cause under § 2253 (e.g., United States v. Smith, 123 F.2d 456 (9th Cir. 1942)), distinguishing any contrary authority as either misreading the statutory text or applying to different procedural mechanisms.

Policy considerations reinforced the statutory construction: allowing appellate courts to issue certificates would circumvent the district court’s exclusive discretion, potentially flooding the appellate system with premature appeals and undermining the orderly, step‐by‐step review process that § 2253 was designed to protect.

Applying these principles to Burwell’s situation, the court observed that he was seeking the certificate from the Ninth Circuit rather than from the district court that had denied his habeas petition; because the statute grants no such power to the appellate court, the petition was outside the court’s jurisdiction and therefore must be dismissed.

Updated August 7, 2026

Concurring/Dissenting Opinions

No separate opinions: The Ninth Circuit issued a per curiam opinion and did not file any concurring or dissenting opinions.

Updated August 7, 2026

Case Relevance

Burwell v. United States is the controlling authority that the statutory grant of a “certificate of probable cause” under 28 U.S.C. § 2253 is an exclusive, district‐court power, thereby foreclosing any appellate‐court authority to issue such a certificate and precluding a direct appeal of a district‐court denial of a habeas petition; the Ninth Circuit’s holding squarely resolves the substantive issue of congressional intent and the procedural issue of appellate jurisdiction by interpreting the plain language of § 2253 and applying the rule of strict construction to a grant of power, so the rule applies whenever a petitioner seeks a certificate of probable cause after a district‐court denial—regardless of circuit or factual context—but is limited to that procedural posture and does not address other mechanisms for appellate review of habeas denials. Consequently, the decision is a valuable citation for any court or practitioner arguing that an appellate court lacks jurisdiction to issue a certificate of probable cause, for courts seeking to close a procedural loophole that would allow premature appeals, and for policymakers emphasizing the step‐by‐step review scheme envisioned by Congress; however, it does not resolve issues concerning alternative avenues of appellate review (e.g., collateral attacks, discretionary appeals) or the substantive merits of habeas claims themselves.

Updated August 7, 2026

Relevant Quotes

Quoted text: "Burwell, Appealing from a judgment of the United States District Court for the Northern District of California, Denying him a writ of habeas corpus, petitions this court to grant him a certificate of probable cause for his appeal."
Bluebook pinpoint citation: 226 F.2d 309
Explanation: Identifies Burwell’s request for a certificate of probable cause from the appellate court, framing the procedural issue.

Quoted text: "The court has no power to grant such a certificat e. 28 U.S.C. § 2253 ."
Bluebook pinpoint citation: 226 F.2d 309
Explanation: States the court’s holding that it lacks authority to grant such a certificate, directly articulating the substantive rule based on 28 U.S.C. § 2253.

Quoted text: "The petition is ordered dismissed."
Bluebook pinpoint citation: 226 F.2d 309
Explanation: Shows the procedural result—dismissal of the petition—demonstrating the application of the rule to the case.

Updated August 7, 2026

Synthesis

Not available

All jurisdictions

Not available.

Additional Comments

Application of Eugene Burwell for Writ of Habeas Corpus · 226 F.2d 309

Monetary awards

No monetary awards found.

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Metadata

Court

Court of Appeals for the Ninth Circuit

Decided

July 7, 1955

Docket

461

Precedential status

Published

Application of Eugene Burwell for Writ of Habeas Corpus

Citing opinions

Headnotes

Opinion