Else v. Johnson, 96-40404
| Decision Date | 20 February 1997 |
| Docket Number | No. 96-40404,96-40404 |
| Citation | 104 F.3d 82 |
| Parties | Paul ELSE, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Before POLITZ, Chief Judge, and REAVLEY and DENNIS, Circuit Judges.
The opinion previously entered in this case is hereby withdrawn and replaced with the following. The district court granted a certificate of probable cause for the appeal of the denial of habeas relief pursuant to 28 U.S.C. § 2254. Several days prior to this grant, a new law became effective: the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). We hold that the district court had the authority to issue a certificate of appealability under the AEDPA amendments to Federal Rule of Appellate Procedure 22(b) and 28 U.S.C. § 2253(c), and that the certificate meets the threshold requirements of appealability. On the merits we find no error, and affirm.
Prior to April 24, 1996, the date the AEDPA became effective, Rule 22(b) and 28 U.S.C. § 2253 required the issuance of a certificate of probable cause by a district or circuit judge prior to processing the appeal by an applicant for habeas arising from state detention. Rule 22(b), as revised by the AEDPA, now requires the issuance of a certificate of appealability by a "district or circuit judge" pursuant to 28 U.S.C. § 2253(c) before § 2254 appeals will be processed. AEDPA, § 103 (codified at FED.R.APP.P. 22(b) (Supp.1996)). The AEDPA revised 28 U.S.C. § 2253 so as to require the issuance of a certificate of appealability by a "circuit justice or judge" before an appeal may be taken from the final order in a proceeding directed at either state or federal detention. AEDPA, § 102 (codified at 28 U.S.C. § 2253(c)(1) (Supp.1996)).
The first question is whether, under the AEDPA amendments, the district courts have the authority to issue certificates of appealability for appeals from habeas actions arising from state detention. While Rule 22(b) states that district judges do have this authority, the language of § 2253 does not expressly name "district" judges as those who may issue certificates of appealability. If there is any inconsistency, we would construe the express grant of authority to district courts as compelling, and we hold that district courts retain the authority to issue certificates of appealability for § 2254 petitions under the AEDPA. 1
The question remains whether the certificate of probable cause issued by the district court meets the threshold requirements of appealability. 28 U.S.C.A. § 2253 now requires a district court issuing a certificate of appealability to indicate which specific issue or issues present a substantial showing by the petitioner of the denial of a constitutional right. AEDPA, § 102 (codified at 28 U.S.C. § 2253(c)(3) (Supp.1996)). In the present case, only one issue was presented in Else's habeas petition. In granting a certificate of probable cause, the district court clearly certified this sole issue for appeal. We find that this meets the threshold requirement of § 2253(c)(3).
We have...
To continue reading
Request your trial
-
Hughes v. Johnson
...Circuit judge, can issue a COA, recent pronouncements from the Fifth Circuit reveal that a District judge can do so. See Else v. Johnson, 104 F.3d 82, 83 (5th Cir.1997) (holding that District Courts retain authority to issue COAs for § 2254 petitions under the AEDPA, and implying that it wo......
-
Carter v. Johnson
...F.3d 1142, 1143 (5th Cir.1995); Pemberton v. State Farm Mut. Auto. Ins. Co., 996 F.2d 789, 791 (5th Cir.1993).3 See also Else v. Johnson, 104 F.3d 82, (5th Cir.1997) (holding that a CPC may be treated as a COA for purposes of appeal).4 The "unreasonable application" standard requires more t......
-
Young v. Dretke
...prejudice determination by the district court. Thus, consistent with Muniz v. Johnson, 114 F.3d 43 (5th Cir.1997) and Else v. Johnson, 104 F.3d 82, 83 (5th Cir.1997), this court is not deprived of jurisdiction to hear this appeal. 28 U.S.C. § 4. As we have noted, the Texas Legislature provi......
-
Peoples v. Haley
...court, remand for a determination of what issues merit review under section 2253(c) may be unnecessary. See, e.g., Else v. Johnson, 104 F.3d 82, 83 (5th Cir. 1997). The instant case is markedly different, however, because Peoples presented not one, but twenty-six claims to the district court. ...