NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

ABDULLAHI KHALIF NOOR,

Petitioner - Appellant,

 v.

MELISSA

ANDREWJESKI, Superintendent,

Respondent - Appellee.

No. 23-1736

D.C. No. 2:22-cv-00270-JHC

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

John H. Chun, District Judge, Presiding

Argued and Submitted September 11, 2024 

Seattle, Washington

Before: W. FLETCHER and SUNG, Circuit Judges, and RAKOFF, District

Judge.

** 

Petitioner-Appellant Abdullahi Khalif Noor (“Noor”) appeals from the

district court’s denial of his petition for a writ of habeas corpus, which challenged

FILED

OCT 3 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Jed S. Rakoff, United States District Judge for the

Southern District of New York, sitting by designation.
his indeterminate life sentence in Washington State prison. The district court

granted a certificate of appealability (“COA”) for one claim—Noor’s constitutional

challenge to the COA requirement itself. We have jurisdiction under 28 U.S.C.

§§ 1291 and 2253, and we review the district court’s denial of habeas relief de

novo, Avena v. Chappell, 932 F.3d 1237, 1247 (9th Cir. 2019).

Noor argues that the COA requirement violates the Due Process Clause and

Equal Protection Clause of the Fifth Amendment. The district court “decline[d]

Petitioner’s request to strike down the certificate of appealability requirement.”

Noor makes the same request of this Court. We agree with the district court and

uphold the COA requirement as constitutional. Accordingly, we affirm the district

court’s denial of habeas relief. 

Congress created the current COA requirement, codified under 28 U.S.C.

§ 2253(c), when it passed the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”). Pub. L. No. 104-132, § 102, 110 Stat. 1214, 1217–18. The

statute requires habeas petitioners to obtain judicial preclearance before appealing

the denial of habeas relief. 28 U.S.C. § 2253(c)(1). Habeas petitioners must make

“a substantial showing of the denial of a constitutional right” to receive a COA. Id.

§ 2253(c)(2). By comparison, government respondents may appeal without a

COA. Fed. R. App. P. 22(b)(3). 

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First, the COA requirement does not violate the Due Process Clause because

it does not infringe a fundamental right. While there is a “fundamental

constitutional right of access to the courts,” Lewis v. Casey, 518 U.S. 343, 346

(1996) (quoting Bounds v. Smith, 430 U.S. 817, 828 (1977)), this right is not

absolute. See Boddie v. Connecticut, 401 U.S. 371, 382 (1971) (“We do not decide

that access for all individuals to the courts is a right that is, in all circumstances,

guaranteed by the Due Process Clause of the Fourteenth Amendment.”). The

Constitution does not protect a right to appeal in federal habeas corpus

proceedings. Abney v. United States, 431 U.S. 651, 656 (1977). It is true that

prisoners have a constitutional right to file habeas petitions. Ex parte Hull, 312

U.S. 546, 549 (1941) (declaring invalid a regulation that required screening of

prisoners’ habeas petitions). But Noor has provided no caselaw extending this

right to habeas appeals. Further, the COA requirement preserves appeal in certain

well-defined situations and avoids “unreasoned distinctions” between habeas

petitioners and government respondents. Rinaldi v. Yeager, 384 U.S. 305, 310

(1966).

Second, the COA requirement’s disparate treatment of petitioners and

government respondents is constitutional. Because habeas petitioners are not a

suspect class, the COA requirement must simply be “rationally related to a

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legitimate governmental purpose.” Hodel v. Indiana, 452 U.S. 314, 331 (1981). 

The prevention of frivolous appeals is a legitimate government interest, and the

COA requirement is rationally related to this purpose. It is reasonable for

Congress to anticipate that government respondents would file fewer frivolous

appeals than habeas petitioners. See Johnson v. Rancho Santiago Cmty. Coll. Dist.,

623 F.3d 1011, 1031 (9th Cir. 2010) (“[A] state action need not actually further a

legitimate interest; it is enough that the governing body ‘could have rationally

decided that’ the action would further that interest.” (quoting Minnesota v. Clover

Leaf Creamery Co., 449 U.S. 456, 466 (1981))).

Noor contends that the COA requirement fails rational basis review because

it is motivated by “animus” against habeas petitioners. Noor points to the

legislative history for a 1908 act that created the precursor to the COA

requirement—a certificate of probable cause. Act of March 10, 1908, Pub. L. No.

60-46, 35 Stat. 40, c. 76. The legislative history suggests that the 1908 Congress

may have been motivated by the purpose of preventing lynching. Comm. on the

Judiciary, Restriction of Right of Appeal in Habeas Corpus Proceedings, H.R. Rep.

No. 23, at 2 (1st Sess. 1908). Noor argues that this purpose perpetuated racist

mythology that delays in cases that resulted in “lynching [were] due to frivolous

and time-consuming appeals by guilty Black rapists.” Whether or not this is true,

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Noor concedes that there is no legislative history to suggest that this purpose

motivated Congress when it passed AEDPA 88 years later. Further, Noor has the

burden of refuting “every conceivable basis” for the COA requirement under

rational basis review. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993)

(quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). 

Noor has not carried this burden because the COA requirement is rationally related

to the legitimate purpose of preventing frivolous appeals. 

AFFIRMED.

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