dissenting.
Judge Moore has fully and fairly presented the issues and relevant authorities. I dissent, however, because I reach a different conclusion.
Her opinion recognizes that Hohn v. United States, 524 U.S. 236, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998), and Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. 3 (1942), stand for the proposition that denial of a certificate of appealability (“COA”), a motion for leave to file a petition for a writ of habeas corpus, or, as in this case, a motion for appointment of counsel would constitute an appealable case. In Hohn, the Court stated:
We further disagree with the contention, advanced by the dissent and by Court-appointed amicus, that a request to proceed before a court of appeals should be *1041regarded as a threshold inquiry separate from the merits which, if denied, prevents the case from ever being in the court of appeals. Precedent forecloses this argument. In Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3 (1942), we confronted the analogous question whether a request for leave to file a petition for a writ of habeas corpus was a case in a district court for the purposes of the then-extant statute governing court of appeals review of district court decisions. See 28 U.S.C. § 225(a) First (1940 ed.) (courts of appeals had jurisdiction to review final decisions “[i]n the district courts, in all eases save where a direct review of the decision may be had in the Supreme Court”). We held the request for leave constituted a case in the district court over which the court of appeals could assert jurisdiction, even though the district court had denied the request. We reasoned, “[presentation of the petition for judicial action is the institution of a suit. Hence the denial by the district court of leave to file the petitions in these causes was the judicial determination of a case or controversy, reviewable on appeal to the Court of Appeals.” 317 U.S., at 24, 63 S.Ct., at 9.
Hohn, 118 S.Ct. at 1974-75.
In McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994), the Court held that a motion for appointment of counsel was sufficient to give the district court jurisdiction to issue a stay of execution in order to give effect to the statutory right to appointed counsel. It seems to me that in view of the potential time restriction on filing petitions for habeas corpus in death penalty cases, and the recognition by Congress of the need of counsel to prepare the petition for the writ, requiring the actual filing of the petition for the commencement of proceedings may effectively deny uneducated, poor petitioners their remedy. The filing of a motion for appointment of counsel is as much as many such petitioners can accomplish without assistance from an attorney. The attorney, in turn, will require time to prepare the petition for the writ. While the statute of limitations problem can be accommodated by applying a doctrine of equitable tolling, that would require a factual inquiry in every case. If the courts were to apply a bright line rule that the request for appointment of counsel tolled any limitation on every case, would it not be more forthright to say that in the case of petition for habeas corpus in a death penalty case the action is commenced by a request for the appointment of counsel because otherwise the petitioner is, in effect, denied that statutory right?