*2 WELLFORD, Bеfore KENNEDY and grounds Houston, asserted by stating in its BROWN, Judges, and Senior Circuit certificate that: “The Court declines to cer- Judge. tify as to the remaining four grounds raised by petitioner because they to fail raise 'sub- BROWN,
BAILEY Judge. Senior Circuit stantial issues of fact or law and were fаirly properly and decided under This appeal judgment prevailing a final authority.” denying petition district court of a state prisoner for of habeas corpus initially writ Houston then applied to this court for a raises the question as to the effect certificate cause as to the re- district court’s issuance of a certificate of maining four counts. This court thereupon probable cause purports which to cer limit entered an order providing that the applica- only tificаtion to two of the six grounds tion for a certificate as such four that petitioner-appellant seeks to raise on grounds be referred for consideration by appeal. conclude We that such limita the hearing panel and- directing the рarties that, tion has no effect in “to certificate brief the issues of whether a limited court, having been issued certificate of probable effective; cause is whether judgment final habeas there denying is be is a relief necessity for a further reviеw, certificate fore us for and that we may accord cause as to issues two, three, five and ingly grounds consider six and by peti all raised the merits of two, three, five and six.” tioner-appellant to the same extent if the district court specifically hаd as to certified The statutory provision that governs the grounds. conclude, all such We further issuance of certificates probable cause, however, that petitioner-appellant’s conten 2253, U.S.C. provides: § tions are without merit for the set reasons out in the district court’s memorandum An appeal may not be taken to the opinion denying petition entered June court of appeals from the final order in a we and therefore affirm the dismissal habeas corpus proceeding where the de- the petition. tention complained of proc- arises out of Houston, Petitioner-appellant, Gregory ess issued State unless the was convicted a trial by jury after justice or judge who rendered the order Michigan court degree of first and murder or a justice or judge issues a cer- with assault intent to commit murder and of probable tificate cause. imprisonment. sentenced to life This statutory provision has been inter- Michigan of Appeals Court affirmed the preted and fleshed 22(b) out Rule conviction, Houston, People v. No. Docket Fed.R.App.P. follows: (June 1980), 77-1607 and the state Su- (b) Necessity of Certificate of Proba- preme Court denied Houston’s application Appeal. ble Cause for In a habeas cor- Houston, Peoрle for leave to appeal. pus proceeding in which the detention 19, 1981). (May Docket No. 65383 complained of arises out process issued then petition Houston filed a in federal an appeal by appli- district court at Detroit for a writ of habeas cant for the writ may not proceed unless corpus to 28 pursuant alleg- U.S.C. § a district or a circuit judge issues a certif- ing six grounds constitutional for relief. icate cause. If an stated, As before the district court deter- taken by the apрlicant, district judge mined that asserted Houston’s who rendered the shall either relief were merit without and dismissed his issue a certificate of cause or petition. timely filed a Houston notice why the reasons such certificate proba- and for a certificate moved should not issue. The certificate or the ble cause. The district court statement shall be forwarded to the court but, so, motion in doing purported to limit of appeals with the notice of and two of six the file of the proceеdings in the district the denial of relief. The quently If the district has denied affirmed certificate, rehear, then filed a applicant appellant for the writ contending prior panel that the had no au-
may
request
then
issuance
certifi-
the certificatе
thority
If
to limit
judge.
request
a circuit
such a
issue,
one
review
seeking
cause to the
appeals,
is addressed to the court
all
addressed to the
issues.
shall be deemed
*3
court held that the
by
granting
limiting
thereof and shall be considered
a cir-
judges
by
prior рanel
giv-
cuit
or
as the court deems
certificate
the
would be
for a
en
appropriate.
express request
ruling
ruling
If no
effect as a
“akin to a
filed,
appeal
certificate is
the
of
entitled to be considered as the law of the
no.tice
case,”
shall be deemed to
a request
constitute
id. at
but that the hearing panel
addressed to the
of the court of
could broaden the appeal
justice required.
if
appeals.
result,
If an
taken
In
the court relied on
or
representative,
its
a certificate of
an
to the
analogy
Supreme Court’s
of
grant
cause is
probable
particular
not
certiorari limited to
required.
issues and
also
pragmatic
relied on a felt
necessity of
where,
here,
Accоrdingly,
as
a district
focusing the attention
litigants
of the
on
purports
court
to limit its certificate of
the issues that merit review. The concur-
issues,
particular
single
cause to
a
ring judge stated serious doubts as to the
judge may
application
entertain an
vаlidity
the analogy
of
to the Supreme
grant
question
to
the certificate. Thus the
practice
granting
Court’s
in
certiorari as to
legal
attempt by
as to the
effect of the
the
limited issues but concurred in the result
district court to limit its certificate
spe-
to
because he believed that
the
practice
is,
cific issues we recognize, less than mo-
the
limiting
issues was necessary to allevi-
mentous;
prime
this is a
a
example of
ate the burden on the federal courts and
situation in which it may
great
not be of
that appellate courts have such inherent
importance what the law is but it is impor-
discretion.
tant that the law be clear.
Jeffes,
Hickey
ex rel.
v.
In United States
that,
Initially, we note
expressly pro-
(3d Cir.1978),petitioner-appel
in a habeas concurring. WELLFORD, Circuit the court contended in appellee-respondent result with agreement in I am that of appeals case, finding this reached effective- by the district cause issued merit are without claims petitioner’s to be considered. the issues ly limited 294
affirming judge’s judgment. I affirm, however, on the basis of the
would Henderson, v. in Vicaretti 645 F.2d
decision denied, 868, Cir.1980) cert. 454 (2d
100
U.S.
(1981),
102 S.Ct. Judge Newman. The opinion reasoned a certifi the issues limiting
practice to “involve a appears cause to focus the atten attempt sensible
court’s merit on the issues that litigants
tion of at relevant standard.” Id. under the
review decision, other out in pointed
102. As sub silen- practice approved have
courts Nelson, rel. Nunes v. ex
tio in United States v. Cir.1972); Nelson (9th 1380
467 F.2d Cir.1972) (1st 1194 n. 1 Moore, 470 F.2d denied, 412 93 S.Ct. rt. U.S. ce (1973). also L.Ed.2d 1003 See 37 Sadowy Fay, ex rel. States
United (2d Cir.1960). approve I would
F.2d the certifi limiting in this case
practice *5 cause, appeal, and the cate of Neal, Harwell, James F. Neal & James only. specific Nashville, Tenn., argued, appel- Sanders
lant. Gill,
John Atty., W. Simp- U.S. Robert E. son, Knoxville, Tenn., Clark, III, Robert G. argued, D.C., Washington, for appellee. LIVELY, KRUPAN- Judge, Before Chief COOK, District SKY, Judge.* LIVELY, Chief-Judge. EMPANELLED JURY re GRAND Jacob J. Butcher appellant 8, 1983. MARCH ap- tecum to subpoena servеd with a duces in the grand jury
No. 83-5508. pear before federal The subpoe- of Tennessee. Eastern District specified Appeals, produce na ordered Butcher Court United States eight records of Circuit. financial and other business Sixth quash Butcher moved сompanies. named 24, 1983. Oct. Argued the act of ground that subpoena his would violate producing the records Nov. 1983. Decided com- privilege against Fifth Amendment 8, 1984. Dismissed March Certiorari government pelled self-incrimination. 1458. See 104 S.Ct. sought hearing at a made it clear also dis- It was corporate records. government closed at the Cook, Jr., Judge, gan, sitting designation. U.S. A. *The Honorable Julian of Michi- District for the Eastern District Court