Bui v. DiPaolo

• Decision Date: 09 December 1998
• Docket Number: No. 98-1312,98-1312
• Citation: 170 F.3d 232
• Parties: Tam S. BUI, Petitioner, Appellant, v. Paul DIPAOLO, et al., Respondents, Appellees. .Heard
• Court: U.S. Court of Appeals — First Circuit

Page 232

170 F.3d 232

Tam S. BUI, Petitioner, Appellant, v. Paul DIPAOLO, et al., Respondents, Appellees.

No. 98-1312.

United States Court of Appeals,

First Circuit.Heard

Dec. 9, 1998.

Decided March 15, 1999.

Wendy Sibbison, with whom Harris Freeman was on brief, for appellant.

Charles W. Rankin and Rankin & Sultan on brief for Criminal Justice Act Board for the District of Massachusetts (with whom the Federal Defender Office for the Districts of Massachusetts and New Hampshire joins), amici curiae.

Cathryn A. Neaves, Assistant Attorney General, Commonwealth of Massachusetts, with whom Scott Harshbarger, Attorney General, was on brief, for appellees.

Before SELYA, Circuit Judge, CYR, Senior Circuit Judge, and STAHL, Circuit Judge.

SELYA, Circuit Judge.

This habeas case presents both procedural and substantive quandaries. Procedurally, we must determine the effect of a district court's grant of a certificate of appealability on some, but not all, of the issues that a habeas petitioner seeks to pursue. Substantively, we must determine whether the petitioner has shown legal cause for us to set aside his state court convictions.

I. BACKGROUND

In November 1989, police discovered the stabbed bodies of a mother and daughter, Ngoc Le and Dixie Poulin. Evidence at the crime scene (the victims' apartment) suggested that Dixie also had been bludgeoned with a blunt instrument, probably a gun, and that the perpetrator(s) likely had absconded with jewelry and cash. Several months later, Thinh Trinh, an acquaintance of the victims, informed the authorities that the petitioner, Tam Bui, had boasted of wielding a gun at the apartment around the time of the murders. Thinh's wife, Linh Nguyen, substantiated the story, recalling that the petitioner told her that he had participated in the crime. As additional corroboration, Thinh and Linh produced two pieces of jewelry that they claimed the petitioner had given to Linh. The jewelry appeared to have belonged to Ngoc Le.

In due course, the police obtained warrants for the petitioner and two other suspects. They first sought to find Bui at his parents' flat. He was not there, but police seized a .38 caliber handgun that Bui's father stated belonged to his son. Shortly thereafter, the authorities apprehended the petitioner and charged him (and the other suspects).

At trial in a Massachusetts state court, the Commonwealth's most incriminating evidence consisted of (i) certain statements that the petitioner had made to police after his arrest, (ii) the testimony of Thinh and Linh, and (iii) the handgun (which the Commonwealth hypothesized had been used to bludgeon Dixie Poulin). The jury convicted the petitioner on two counts of first-degree murder and one count of armed robbery. The court sentenced him to serve two consecutive terms of life imprisonment.

The Massachusetts Supreme Judicial Court (SJC) affirmed the convictions. See Commonwealth v. Bui, 419 Mass. 392, 645 N.E.2d 689 (1995) (Bui I ). The petitioner then sought habeas corpus relief in the federal district court, see 28 U.S.C. § 2254, naming as respondents two state officials. His petition enumerated several purported constitutional faults. The district court found the claims of error unpersuasive and declined to disturb the state court judgment. See Bui v. DiPaolo, 985 F.Supp. 219 (D.Mass.1997) (Bui II ).

Because Bui filed his application for habeas corpus relief in December 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, 1217-18 (Apr. 24, 1996) (codified in scattered sections of 28 U.S.C.), governs this case. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997) (holding that, in general, AEDPA's provisions apply to cases filed after its effective date). Under the AEDPA amendments, a habeas petitioner can prosecute an appeal only if he first obtains a certificate of appealability (COA). See 28 U.S.C. § 2253(c). In this instance the district court, after denying the application for a writ of habeas corpus, certified one issue for appeal--the petitioner's Sixth Amendment claim that the trial court impermissibly thwarted his lawyer's attempts to cross-examine Thinh--but declined to certify the petitioner's Fifth Amendment claim.

Undaunted, the petitioner sought to proceed in this venue on both claims. ¹ Because we had not had occasion to resolve the question of whether COAs are to be treated as case-specific or issue-specific, we permitted the petitioner to brief his Fifth Amendment claim on the merits, but required that he simultaneously brief the antecedent procedural question. Consequently, we begin by erecting a procedural framework for the handling of COAs in multi-issue cases. We then discuss the petitioner's two substantive contentions.

II. CERTIFICATES OF APPEALABILITY

Bui and the amici argue that we are obligated to mull the merits of his Fifth Amendment claim because, in their view, COAs issued under the AEDPA-spawned habeas amendments should be treated as case-specific rather than issue-specific. In other words, they contend that the grant of a COA on any one issue opens all issues in the case to full appellate review. Although this result would have been consistent with practice as it existed before the AEDPA amendments, see Magouirk v. Phillips, 144 F.3d 348, 356 (5th Cir.1998); Tejeda v. Dubois, 142 F.3d 18, 22 n. 4 (1st Cir.1998), we think it is now outmoded. Congress, in enacting the AEDPA, meant to change prior practice and succeeded in doing so: the language and structure of the amended habeas statute pretermit appellate consideration of claims not properly certified for appeal.

The AEDPA predicates the very issuance of a COA--without which "an appeal may not be taken to the court of appeals," 28 U.S.C. § 2253(c)(1)--on whether an "applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2). A habeas petitioner who fails to demonstrate that his claims satisfy the substantial showing standard may not appeal the denial of habeas corpus at all.

This rule is easily applied in situations in which a habeas court's decisions on the merits and on the availability of a COA are congruent. Thus, if a habeas application raises only issues that, in the district court's opinion, warrant neither relief nor a COA, no appeal lies. Conversely, if the application raises only issues that, according to the district court, uniformly pass muster under the substantial showing standard and, thus, are certifiable (even though in the district court's view they do not justify relief), then a free-ranging appeal lies.

In these examples, the COA itself is but a variable that depends wholly on the existence of a substantial showing that the petitioner's constitutional rights have been abridged. The question at hand is whether this relationship is altered in a situation that lacks essential congruence, that is, when the district court, having denied a habeas application, deems some, but fewer than all, of the petitioner's claims certifiable.

We believe that the necessity for a substantial showing extends independently to each and every issue raised by a habeas petitioner. Had the mere existence of a COA been sufficient to qualify all the issues in a habeas case for appellate review, it would have been pointless for Congress to go on to state, in section 2253(c)(3), that a COA "shall indicate which specific issue or issues satisfy" the substantial showing standard of section 2253(c)(2). This language was absent from section 2253's previous incarnation, and the fact that Congress added it in the AEDPA signals an intent that the courts should accord some significance to it. The petitioner's reading of the statute would render this phrase superfluous, for as long as one issue were certifiable, all others would be amenable to review. We customarily read statutes in a manner that gives effect to all words and phrases, see Walters v. Metropolitan Educ. Enters., Inc., 519 U.S. 202, 117 S.Ct. 660, 664, 136 L.Ed.2d 644 (1997); United States v. Ven-Fuel, Inc., 758 F.2d 741, 751-52 (1st Cir.1985), and we see no valid reason to deviate from this salutary practice here.

Common sense also suggests that such an interpretation should be preferred. Were we to adopt the petitioner's construction of the statute, we would establish a paradigm under which tenuous habeas claims could not be appealed if asserted on their own, but could command appellate attention if accompanied by a solitary claim that met the substantial showing standard. This dichotomy lacks rhyme or reason, and there is no indication that Congress intended to create so curious a structure. The better reading of the habeas amendments is one that links section 2253(c)(3)'s insistence on an issue by issue enumeration of what has been certified for appeal with the substantial showing requirement of section 2253(c)(2). We hold, therefore, that a court of appeals should not consider the merits of an issue advanced by a habeas petitioner unless a COA first has been obtained with respect to that issue. Accord Ramsey v. Bowersox, 149 F.3d 749, 759 (8th Cir.1998), cert. denied, --- U.S. ----, 119 S.Ct. 1083, 143 L.Ed.2d 85 (1999); Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir.1998); Sylvester v. Hanks, 140 F.3d 713, 715 (7th Cir.1998); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir.1997); In re Certificates of Appealability, 106 F.3d 1306, 1308 (6th Cir.1997).

Were the power to issue a COA exclusively a prerogative of the district courts, this holding might answer the procedural question that confronts us. Under the AEDPA amendments, however, a habeas petitioner who fails in his effort to obtain a COA in the district court may then beseech the court of appeals to issue one. See Fed. R.App. P. 22(b)(1) ("If the district judge has denied the certificate, the applicant for the writ may then request issuance of the certificate by a circuit judge."...