Houston v. Mintzes

• Decision Date: 22 November 1983
• Docket Number: No. 83-1181,83-1181
• Citation: 722 F.2d 290
• Parties: Gregory HOUSTON, Petitioner-Appellant, v. Barry MINTZES, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 290

722 F.2d 290

Gregory HOUSTON, Petitioner-Appellant, v. Barry MINTZES, Respondent-Appellee.

No. 83-1181.

United States Court of Appeals, Sixth Circuit.

Argued July 25, 1983.

Decided Nov. 22, 1983.

Carl Ziemba, argued, Detroit, Mich., for petitioner-appellant.

Frank J. Kelley, Atty. Gen. of Mich., Eric J. Eggan, argued, Asst. Atty. Gen., Corrections Div., Crim. Appeals Sec., Lansing, Mich., for respondent-appellee.

Before KENNEDY and WELLFORD, Circuit Judges, and BROWN, Senior Circuit judge.

BAILEY BROWN, Senior Circuit Judge.

This appeal of a final judgment of a district court denying a petition of a state prisoner for a writ of habeas corpus initially raises the question as to the effect of the district court's issuance of a certificate of probable cause which purports to limit certification to only two of the six grounds that petitioner-appellant seeks to raise on this appeal. We conclude that such limitation has no legal effect in that, a certificate having been issued by the district court, the final judgment denying habeas relief is before us for review, and that we may accordingly consider all grounds raised by petitioner-appellant to the same extent as if the district court had specifically certified as to all such grounds. We further conclude, however, that petitioner-appellant's contentions are without merit for the reasons set out in the district court's memorandum opinion denying the petition entered June 1, 1982, and we therefore affirm the dismissal of the petition.

Petitioner-appellant, Gregory Houston, was convicted after a trial by jury in a Michigan court of first degree murder and assault with intent to commit murder and was sentenced to life imprisonment. The Michigan Court of Appeals affirmed the conviction, People v. Houston, Docket No. 77-1607 (June 16, 1980), and the state Supreme Court denied Houston's application for leave to appeal. People v. Houston, Docket No. 65383 (May 19, 1981).

Houston then filed a petition in federal district court at Detroit for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254, alleging six constitutional grounds for relief. As before stated, the district court determined that Houston's asserted grounds for relief were without merit and dismissed his petition. Houston filed a timely notice of appeal and moved for a certificate of probable cause. The district court granted the motion but, in doing so, purported to limit the certificate to only two of the six grounds asserted by Houston, stating in its certificate that: "The Court declines to certify as to the remaining four grounds raised by petitioner because they fail to raise substantial issues of fact or law and were fairly and properly decided under prevailing authority."

Houston then applied to this court for a certificate of probable cause as to the remaining four counts. This court thereupon entered an order providing that the application for a certificate as to such four grounds be referred for consideration by the hearing panel and directing the parties "to brief the issues of whether a limited certificate of probable cause is effective; whether there is a necessity for a further certificate of probable cause as to issues two, three, five and six and the merits of issues two, three, five and six."

The statutory provision that governs the issuance of certificates of probable cause, 28 U.S.C. Sec. 2253, provides:

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An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a State court, unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause.

This statutory provision has been interpreted and fleshed out by Rule 22(b) of the Fed.R.App.P. as follows:

(b) Necessity of Certificate of Probable Cause for Appeal. 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 certificate of probable cause. If an appeal is taken by the applicant, the district judge who rendered the judgment shall either issue a certificate of probable cause or state the reasons why such a certificate should not issue. The certificate or the statement shall be forwarded to the court of appeals with the notice of appeal and the file of the proceedings in the district court. If the district judge has denied the certificate, the applicant for the writ may then request issuance of the certificate by a circuit judge. If such a request is addressed to the court of appeals, it shall be deemed addressed to the judges thereof and shall be considered by a circuit judge or judges as the court deems appropriate. If no express request for a certificate is filed, the notice of appeal shall be deemed to constitute a request addressed to the judges of the court of appeals. If an appeal is taken by a state or its representative, a certificate of probable cause is not required.

Accordingly, where, as here, a district court purports to limit its certificate of probable cause to particular issues, a single circuit judge may entertain an application to grant the certificate. Thus the question as to the legal effect of the attempt by the district court to limit its certificate to specific issues is, we recognize, less than momentous; this is a prime example of a situation in which it may not be of great importance what the law is but it is important that the law be clear.

Initially, we note that, as expressly provided by section 2253, the certificate of probable cause is a condition precedent to an appeal of a "final order" of the district court, not to an appeal of issues decided by a district court. Here Houston is appealing from a "final order" of the district court dismissing his petition.

It appears that only two circuits have expressly ruled on the legal effectiveness of a purported limitation of a certificate of probable cause and neither of these cases dealt with the legal effect of such a limitation in a certificate issued by a district court.

In Vicaretti v. Henderson, 645 F.2d 100 (2d Cir.1980) cert. denied, 454 U.S. 868, 102 S.Ct. 334, 70 L.Ed.2d 171 (1981), a panel of the Second Circuit has granted a certificate limited to only one of the issues raised by the habeas appellant. The hearing panel, considering only the certified issue, subsequently affirmed the denial of relief. The appellant then filed a petition to rehear, contending that the prior panel had no authority to limit the certificate of probable cause to the one issue, and seeking review by the hearing panel of all issues. The court held that the granting of a limiting certificate by the prior panel would be given effect as a ruling "akin to a ruling entitled to be considered as the law of the case," id. at 102, but that the hearing pa...