Background
Sherill Lynn Smothers appealed to the Ninth Circuit from the Northern District of California's denial of his habeas corpus petition filed under 28 U.S.C. § 2241, where Rita F. Lin served as the presiding district judge. His petition raised a Double Jeopardy challenge under the Fifth Amendment. After denying the petition, the district court refused to issue a certificate of appealability, so Smothers sought a COA from the court of appeals. The appeal, docketed as No. 25-2161, was argued and submitted in San Francisco on October 23, 2026, and decided by an unpublished memorandum on November 6, 2026.
A prior Ninth Circuit panel declined to certify the questions Smothers himself presented. Instead, it formulated and certified its own question: whether Smothers had raised a colorable Double Jeopardy claim in the context of Younger v. Harris, based on his argument that issue preclusion would bar the prosecution at his retrial from relitigating the allegation that he was the actual killer. The merits panel, sitting as Forrest and Tung, Circuit Judges, and Bastian, District Judge, therefore confronted the validity and scope of that certificate rather than simply deciding the underlying habeas claim.
The Court’s Holding
The court explained that it could review the district court's decision only if a certificate of appealability issued. Under 28 U.S.C. § 2253(c)(1)(A) and (c)(2), a COA requires the applicant to make a substantial showing of the denial of a constitutional right. Because issuance of a COA is the only truly jurisdictional requirement, the court may vacate or expand an issued certificate to remedy any defect. If resolution of the certified question would provide no effectual relief whatever to the petitioner, the COA was improperly granted, and the court may vacate it and dismiss the appeal for lack of jurisdiction.
Applying that framework, the panel held that the prior panel's certified question did not present a constitutional issue, and that any answer to it would provide Smothers no effectual relief on the Double Jeopardy challenge he had unsuccessfully raised below. The COA therefore had been improperly issued. The court also declined to expand the certificate to cover the underlying Double Jeopardy issue because the district court's ruling on that challenge was not reasonably debatable or wrong under Slack v. McDaniel in light of governing precedent, including the en banc decision in Santamaria v. Horsley. Neither the district court nor the Ninth Circuit had erred in refusing to certify that issue.
The court accordingly vacated the certificate of appealability and dismissed the appeal for lack of jurisdiction. It did not grant habeas relief and did not decide the merits of Smothers's Double Jeopardy claim.
Key Takeaways
- A certificate of appealability is the jurisdictional gateway to appellate review of a habeas decision, and the Ninth Circuit may vacate or expand a defective certificate to remedy any defect.
- A certified question that presents no constitutional issue and cannot yield any effectual relief to the petitioner cannot sustain appellate jurisdiction.
- The panel declined to expand the COA to Smothers's underlying Double Jeopardy issue because the district court's ruling was not reasonably debatable or wrong under governing precedent.
- The disposition vacated the COA and dismissed the appeal for lack of jurisdiction without granting habeas relief or adjudicating the merits of the Double Jeopardy claim.
- A prior panel's decision to certify a question of its own formulation does not insulate that certificate from later vacatur if the question fails the statutory requirements.
Why It Matters
The decision illustrates the difference between obtaining a certified appellate question and establishing jurisdiction to obtain meaningful habeas review. Even though a prior panel had issued a COA, the merits panel examined whether that certificate satisfied § 2253 and whether answering its question could actually help Smothers. Its refusal to expand the certificate also shows that an improperly framed certified question does not automatically open the door to every issue the petitioner wants reviewed.
The ruling underscores the jurisdictional gatekeeping function of the COA requirement in habeas appeals. By vacating the certificate and dismissing the appeal, the Ninth Circuit confirmed that a certified question must present a constitutional issue capable of yielding effectual relief, and that a petitioner cannot use a defective certificate to obtain review of an underlying claim that the district court reasonably rejected.