Hardwick v. Singletary
| Decision Date | 24 October 1997 |
| Docket Number | No. 97-2319,97-2319 |
| Citation | 126 F.3d 1312 |
| Parties | 11 Fla. L. Weekly Fed. C 647 John Gary HARDWICK, Petitioner-Appellant, v. Harry K. SINGLETARY, Jr., Secretary, Florida Department of Corrections, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
John Gary Hardwick, Jr., Raiford, FL, pro se.
Curtis M. French, Assistant Attorney General, Tallahassee, FL, for Respondent-Appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before ANDERSON and BIRCH 1, Circuit Judges.
ON SUGGESTION OF REHEARING EN BANC.
Appellee Harry K. Singletary, Jr. asks us to reexamine our decision in Hardwick v. Singletary, 122 F.3d 935 (11th Cir.1997). No member of this panel nor any other judge in regular active service on the court having requested that the court be polled on rehearing en banc (Rule 35, Fed. R.App. P.; 11th Cir. Rule 35-5), the suggestion of rehearing en banc is DENIED. However, upon reconsideration, the opinion of this panel is vacated solely as to the last paragraph, in which we vacated the district court's order and remanded this case for a reevaluation of the petitioner's application for a certificate of probable cause. The following three paragraphs are entered in its place:
Although we conclude that the district court erred in applying the standard governing certificates of appealability under the AEDPA to Hardwick's petition, we further resolve that remand is unnecessary. The pre-AEDPA certificate of probable cause required a petitioner to make a "substantial showing of a denial of [a] federal right." Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983) (internal quotes and citation omitted). Under the AEDPA, a certificate of appealability may be issued only where the applicant has made a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Notwithstanding a marginal variance in the language identifying the necessary showing with respect to certificates of probable cause and appealability, we conclude that the standard governing certificates of probable cause and certificates of appealability is materially identical. See Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir.1997) ().
Where, as in the instant case, the district court has granted a certificate of appealability as to any issue presented in a petition pending on the date that the AEDPA became effective, we construe the grant of a certificate of...
To continue reading
Request your trial
-
Hardwick v. Crosby
...a certificate of probable cause to appeal all issues presented in the petitioner's federal habeas petition." Hardwick v. Singletary, 126 F.3d 1312, 1313 (11th Cir.1997) (per curiam). After oral argument, we directed counsel to provide supplemental briefs discussing the effect of Williams v.......
-
Peoples v. Haley
...AEDPA, he is correct in seeking a certificate of probable cause rather than a certificate of appealability. See Hardwick v. Singletary, 126 F.3d 1312, 1313 (11th Cir. 1997) (recognizing that Lindh v. Murphy, 521 U.S. 320, 117 S. Ct. 2059, 2068 (1997), effectively "abrogates and supplants" t......
-
Peoples v. Haley
...AEDPA, he is correct in seeking a certificate of probable cause rather than a certificate of appealability. See Hardwick v. Singletary, 126 F.3d 1312, 1313 (11th Cir.1997) (recognizing that Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997), effectively "abrogates a......
-
Wilborn v. United States
..."the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2243(c)(2); Hardwick v. Singletary, 126 F.3d 1312, 1313 (11th Cir. 1997). This standard is "materially identical" to that governing certificates of probable cause under the former 28 U.S.C. §......