Houchin v. Zavaras, Civil Action No. 93-K-2651.

• Decision Date: 01 May 1996
• Docket Number: Civil Action No. 93-K-2651.
• Citation: 924 F. Supp. 115
• Parties: William C. HOUCHIN, Jr., Petitioner, v. Aristedes W. ZAVARAS, Director, Colorado Department of Corrections, Respondent.
• Court: U.S. District Court — District of Colorado

924 F. Supp. 115

William C. HOUCHIN, Jr., Petitioner, v. Aristedes W. ZAVARAS, Director, Colorado Department of Corrections, Respondent.

Civil Action No. 93-K-2651.

United States District Court, D. Colorado.

May 1, 1996.

Jean E. Dubofsky, Boulder, CO, for Petitioner.

Wendy J. Ritz, Assistant Attorney General, Denver, CO, for Respondent.

MEMORANDUM OPINION AND ORDER AND CERTIFICATE OF APPEALABILITY

KANE, Senior District Judge.

Before me is the petitioner's Application for a Certificate of Probable Cause filed on April 26, 1996 and signed by his counsel that same day. I denied his Petition for Writ of Habeas Corpus in a Memorandum Decision and Order on March 28, 1996. The dates are important because on April 24, 1996 President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996. This Act contains, among other significant provisions, amendments to 28 U.S.C. §§ 2244, 2253, 2254, 2255; Rule 22 of the Federal Rules of Appellate Procedure; and 21 U.S.C. § 848(q).

The amended 28 U.S.C. § 2253 provides an appeal may not be taken to the court of appeals from a district judge's ruling on a state prisoner's habeas corpus petition unless a "circuit justice or judge" issues a "certificate of appealability." The only effective date provision specified in Title I of the habeas corpus amendments is located in the death penalty litigation procedures section and states that those provisions shall apply to cases pending on or after enactment. The case at bar involves convictions for first degree murder for which the Petitioner was sentenced to two consecutive life terms of imprisonment. The prosecution did not seek the death penalty and the petitioner is not "subject to a capital sentence." Accordingly, the death penalty litigation procedures do not apply.

Because the statute is silent regarding the date of its applicability to pending habeas corpus proceedings in which the death penalty is not involved, courts are left to speculate whether the expression of applicability to capital cases "pending on or after enactment" is meant to exclude applicability to non-capital habeas corpus proceedings "pending on or after enactment." I don't think it does, but the Act gives no guidance. Moreover, the legislative history is silent on this as well as other points considered in this opinion.

I don't think a retrospective application analysis is at all helpful since I am concerned with present, not past, application. My decision denying the Petition was given before the effective date of the Act, which has no substantive effect on it; the question is whether the new appeal requirements apply. I think they do because in the absence of expressed contrary provisions, statutes become effective when they are signed into law. See United States v. Ferryman, 897 F.2d 584, 588-89 (1st Cir.) ("no parole" provisions of Comprehensive Crime Control Act of 1984 effective upon signing; absent legislative intent the contrary, general presumption is that statutes become effective at the moment they are signed into law), cert. denied, 498 U.S. 830, 111 S.Ct. 90, 112 L.Ed.2d 62 (1990).

Not only is there a lack of clear direction in the Act, the confusion is heightened by the mandates actually articulated. The newly enacted § 2253(c)(1) provides: "Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from — (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court...." (The situation before me.)

Section 103 of the Act amends Rule 22 of the Federal Rules of Appellate Procedure to provide in part: "(b) CERTIFICATE OF APPEALABILITY. — In a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court, an appeal by the applicant for the writ may not proceed unless a district or a circuit judge issues a...