UNITED STATES of America, v. Angel CEPERO a/k/a Angel Villar-Cepero a/k/a Mosquito, Angel Cepero, Appellant.
No. 99-3047.
United States Court of Appeals, Third Circuit.
Filed Aug. 17, 2000.
Argued March 6, 2000. Re-Argued May 24, 2000. 224 F.3d 256
The majority affirms a sentence imposed by a Judge who believed the law prevented her from even considering such matters. Respectfully, I dissent.
Theodore Sliwinski, (argued), East Brunswick, NJ, Attorney for Appellant, Angel Cepero.
David M. Barasch, United States Attorney, Theodore B. Smith, III (argued), Assistant United States Attorney, Kim Douglas Daniel, Assistant United States Attorney, Harrisburg, PA, Attorneys for Appellee, United States of America.
Peter Goldberger, Law Offices of Peter Goldberger, Ardmore, PA, Attorney for Amicus Curiae, National Association of Criminal Defense Lawyers.
Argued March 6, 2000.
Before: SCIRICA, ALITO and ALDISERT, Circuit Judges.
Re-Argued May 24, 2000.
Before: BECKER, Chief Judge, SLOVITER, MANSMANN, GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH, McKEE, RENDELL, BARRY, FUENTES and ALDISERT, Circuit Judges.
OPINION OF THE COURT
ALDISERT, Circuit Judge:
We must decide whether the Antiterrorism and Effective Death Penalty Act of 1996 precludes our review of Appellant‘s unsuccessful
I.
In April 1997, Angel Cepero was indicted along with two co-defendants for conspiracy to distribute and possess with intent to distribute “cocaine and more than 50 grams of cocaine base, a/k/a ‘crack’ cocaine” in violation of
An assistant federal public defender was appointed as Cepero‘s counsel, and in June and July 1997 filed two pretrial motions, both of which referred to the substance at issue as “crack cocaine.” Shortly thereafter, Cepero executed a plea agreement in which he agreed to plead guilty to the conspiracy count, which paragraph 1 identified as “conspiracy to distribute more than 5 grams of cocaine base.” In pertinent part, paragraph 1 stated also that the “maximum penalty for the offense is imprisonment for a period of 40 years [and] a fine of $2,000,000,” which corresponds to the maximum penalties for crack cocaine under
Three days later a guilty-plea hearing was held, during which the sentencing court, the prosecutor and the public defender all referred to the offense as involving either cocaine or cocаine base. The prosecutor noted the statutory range of penalties as being from five to 40 years and a maximum fine of $250,000, based on the agreement that Cepero‘s conduct involved 35 to 50 grams of cocaine base. The prosecutor summarized the Government‘s case and consistently referred to the drug transaction as involving cocaine or cocaine base. Cepero agreed that this was an accurate account of his involvement and pled guilty to the conspiracy charge.
The presentence report identified the substance at issue as “crack cocaine.” The report concluded that Cepero‘s base offense level was 30, derived from
On September 20, 1998, Cepero filed his pro se habeas petition in the District Court pursuant to
After argument, we granted rehearing en banc to decide whether the District Court erroneously granted Cepero a certificate of аppealability under
II.
Before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a petitioner in federal custody who was denied relief by a district court on a
Section 102 of the Antiterrorist and Effective Death Penalty Act amended the jurisdictional dimension of
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of apрeals 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; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).
In our prior decisions interpreting the amended version of
III.
We recognize that several courts of appeals have passed on the question we decide today—whether we have jurisdiction under
[Petitioner] raises questions . . . involving issues of statutory construction. Therefore, it is possible that [he] does not raise an issue involving a constitutional right.
Here [] we avoid the procedural point because the government . . . took the position that if the district court is empowered to issue certificates of appealability under section 2253(c)(1), we should decide this case on the merits. Thus, the determination of the meaning of “constitutional right” in section 2253(c)(2) is not necessary to the disposition of this appeal.
In reaching our result, we have not disregarded our practice of examining our jurisdiction before reaching the merits of an appeal, and we recognize the possibility that the procedural problems we have identified [i.e., petitioner‘s possible failure to raise issues implicating constitutional rights] could be considered jurisdictional. Instead, we are applying the settled principle that an ap-
Eyer, 113 F.3d at 474 (internal quotation marks and citations omitted). This practice of exercising “hypothetical jurisdiction” is neither new nor specific to certificates of appealability. See generally Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 93-94 (1998) (collecting cases). Nevertheless, in 1998 the Supreme Court largely rejected this custom. See id. at 94. We recently discussed the Court‘s teachings in Steel Co. vis-a-vis our past exercise of hypothetical jurisdiction in Eyer:
We recognize that the Supreme Court in Steel Co. [] disapproved the practice of a court of appeals, such as in Eyer [], avoiding difficult jurisdictional questions when a merits determination would favor the party who would benefit if it declined to exercise jurisdiction. But if we were to determine that we will not issue a certificate of appealability because [petitioner] has not demonstrated that he is entitled to one under
28 U.S.C. § 2253(c)(3) , then we would find that this court does not have jurisdiction to go forward in this appeal.
United States v. Williams, 158 F.3d 736, 741-742 (3d Cir. 1998). We continue to recognize that the Court‘s opinion in Steel Co. stands for the proposition that an Article III court may not assume subject-matter jurisdiction to reach the merits of an appeal.
Several of our sister courts of appeals have reached the merits of prisoners’ appeals from unsuccessful
The certificate is a screening device, helping to conserve judicial (and prosecutorial) resources . . . Once a certificate has issued, however, the case proceeds to briefing and decision; the resources have been invested. It is too late to narrow the issues or screen out weak claims. Perhaps a motion to dismiss an appeal on the ground that a certificate was improperly issued would serve some function. But once the briefs have been written and the case heard, there is little point in scrutinizing the certificate of appealability. An obligation to determine whether a certificate should have been issued, even if the parties do not present this issue for decision—a step entailed by the conclusion that a proper certificate is a jurisdictional requirement—would increase the complexity of appeals in collateral attacks and the judicial effort required to resolve them, the opposite of the legislative plan. So we proceed to the merits as the parties have presented them.
The Court of Appeals for the Tenth Circuit reached the same conclusion and relied on the Young reasoning. See United States v. Talk, 158 F.3d 1064, 1065 (10th Cir. 1998). Similarly, the Court of Appeals for the Second Circuit adopted this reasoning in Soto v. United States, 185 F.3d 48 (2d Cir. 1999), emphasizing that “the certificate is a screening device” and that it had previously intimated the same “gate-keeping” view of the certificate of appealability requirement in Lozada v. United States, 107 F.3d 1011, 1015 (2d Cir. 1997). It reasoned that “dismissing an appeal after a certificate of appealability has already issued would be of little utility; installing this Court as a
IV.
The difficulty that we have with the approach of our sister courts of appeals is that they fail to recognize the precisе jurisprudential nature of a certificate of appealability as defined in Hohn v. United States, 524 U.S. 236 (1998). The centerpiece of the reasoning of those courts is that a certificate is an administrative function, described as “a screening device, helping to conserve judicial (and prosecutorial) resources.” Young, 124 F.3d at 799; see Talk, 158 F.3d at 1065; Soto, 185 F.3d at 52.3
The question for decision in Hohn was “whether the Court has jurisdiction to review decisions of courts of appeals denying applications for certificate of appealability,” 524 U.S. at 238-239. To reach this question the Court first had to decide whether the issuance of a certificate of appealability by a court of appeals constituted a judicial function, rather than an administrative function, and was therefore subject to judicial review. The Court rejected the notion advanced by the respondent in the case before it, and explicit in the reasoning in Young, Talk and Soto, that a certificate of appealability is merely a screening device. To the contrary, the Court held that decisions regarding applications for certificates of appealability are not merely an administrative function of the courts. Hohn, 524 U.S. at 245. The teaching of Hohn is clear and unambiguous:
Decisions regarding applications for certificates of appealability, in contrast, are judicial in nature. It is typical for both parties to enter appearances and to submit briefs at appropriate times and for the court of appeals to enter a judgment and to issue a mandate at the end of the proceedings, as happened here . . . Construing the issuance of a certificate of appealability as an administrative function, moreover, would suggest an entity not wielding judicial power might review the decisions of an Article III court. In light of the constitutional questions which surround such an arrangement, see Gordon [v. United States, 117 U.S. Appx. 697, 702, 704 (1864)]; Hayburn‘s Case, 2 Dall. 409 (1792), we should avoid any such implication.
Hohn, 524 U.S. at 245-246 (emphasis added). The Court then proceeded to analogize Ex parte Quirin, 317 U.S. 1 (1942):
We held the request for leave [to appeal] constituted a case in the district court over which the court of appeals could assert jurisdiction, even though the district court had denied the request. We reasoned, “[p]resentation of the petition for judicial action is the institution of a suit. Hence the denial of the district court of leave to file the petitions in these causes was the judicial determination of a case or controversy, reviewable on appeal to the Court of Appeals.” 317 U.S., at 24.
Hohn, 524 U.S. at 246. The Court concluded by stating,
the circumstance that the question before the court is a preliminary issue, such as the denial of a certificate of appealability or venue, does not oust appellate courts of the jurisdiction to review a ruling on the matter.
In view of the explicit language of the Court, we must reject the analysis of our sister circuits and decline the notion that this court is bound by the District
V.
Our first task in our review is to address Section 102 of the Antiterrorist and Effective Death Penalty Act of 1996, which amended the jurisdictional dimension of
(c)(1) 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; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).
Cepero advances two basic arguments, either of which he claims requires us to reject the plain language of “constitutional right” and hold that Congress intended the phrase to mean “federal right“—first, that the amended version of
A.
We are satisfied that the Court has recently made clear that the use of the phrase “constitutional right” must be given effect. “Our task is to interpret the statute as best we can, not to second-guess the wisdom of the congressional policy choice . . . Congress chose the language that requires us to decide as we do, and Congress is free to change it.” Mansell v. Mansell, 490 U.S. 581, 594 (1989) (citation omitted). In Slack v. McDaniel, 529 U.S. 473 (2000), the Court held:
When the district court denies a habeas petition on procedural grounds without reaching the prisoner‘s undеrlying constitutional claim, a COA [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.
Under AEDPA, a COA may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c) . Except for substituting the word “constitutional” for the word “federal,”§ 2253 is a codification of the CPC [certificate of probable cause] standard announced in Barefoot v. Estelle. Congress had before it the meaning Barefoot had given to the words it selected; and we give the language found in§ 2253(c) the meaning ascribed it in Barefoot, with due note for the substitution of the word “constitutional.”
Slack, 529 U.S. at 483 (emphasis added and citations omitted).
Prior to the Court‘s opinion in Slack, the Court of Appeals for the Tenth Circuit offered a similar analysis of the post-AEDPA version of
By requiring an applicant for a certificate of probable cause to make a “substantial showing of the denial of a federal right,” the Supreme Court in Barefoot ensured that appellate review of the federal habeas process should be limited to petitions that make a colorable showing of constitutional error. Although the Court used the word “federal,” an applicant seeking a certificate of probable cause to appeal a district court‘s denial of a
§ 2254 petition for a writ of habeas corpus must demonstrate a substantial showing of constitutional error underlying the state conviction. We have always read the Barefoot standard to require a habeas petitioner to make a substantial showing of the denial of a federal constitutional right. Indeed, in the context of federal habeas review of a conviction entered in state court, it is the only intelligible reading.
Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996) (citations omitted), overruled on other grounds by United States v. Kunzman, 125 F.3d 1363 (10th Cir. 1997).
Because Congress’ meaning of “constitutional” in
Section 2253 of title 28, United States Code, is amended to read as follows:
(c). . . . A certificate of probable cause may only issue if the petitioner has made a substantial showing of the denial of a Federal right. . . .
Sec. 102, H.R. Report No. 104-23 (1995) (emphasis added). This Report included also a section entitled “Background and Need for the Legislation,” which provided:
The bill also strengthens the certificate of probable cause requirement by providing (in proposed
§ 2253(c) ) that a certificate may issue only on a substantial showing of the denial of a federal right. The bill thus enacts the standard of Barefoot v. Estelle, 463 U.S. 880 (1983). . . .
H.R. Report No. 104-23 (“Background and Need for the Legislation“). In March 1995, the Senate and House of Representatives considered various versions of the bill, and on December 5 and 6 the House and Senate Judiciary Committees respectively issued their final reports on the proposed legislation, neither of which contained language amending
On April 15, 1996, Hоuse Conference Report No. 104-518, accompanied by S.
B.
Notwithstanding AEDPA‘s limited legislative history on this point, it is clear that Congress by amending
First. Congress established the requirement that a prisoner obtain a certificate of probable cause to appeal in order to prevent frivolous appeals from delaying the States’ ability to impose sentences, including death sentences. The primary means of separating meritorious from frivolous appeals should be the decision to grant or withhold a certificate of probable cause. . . . We agree with the weight of opinion in the Courts of Appeals that a certificate of probable cause requires petitioner to make a “substantial showing of the denial of [a] federal right.” Stewart v. Beto, 454 F.2d 268, 270, n. 2 (5th Cir. 1971), cert. denied, 406 U.S. 925 (1972).
Barefoot, 463 U.S. at 893 (alteration in original) (footnote omitted) (citing Ramsey v. Hand, 309 F.2d 947, 948 (10th Cir. 1962); and Goode v. Wainwright, 670 F.2d 941 (11th Cir. 1982)).
There is no doubt that the current version of
It must be emphasized that it makes no differenсe whether “the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court” described in
This is not to suggest that Congress’ amendment of
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence . . .
C.
We now address the argument that the Court sub silentio has already interpreted
Although there is no discussion or reference made in the Peguero opinion that contemplates the precise issue presented here, Appellant here argues that the issue of jurisdiction under
The government acquiesced in the granting of a certificate of appealability. [ ] In fact, however, the district court erred in issuing a certificate. A certificate of appealability may be issued “only if the applicant has made a substantial showing of the denial of a constitutional right,”
28 U.S.C. § 2253(c)(2) (Suppl. II 1996), and the Rule 32 error on which the petitioner sought the certificate is not of constitutional dimension.
Brief for Respondent at *6 n. 5, Peguero, 1998 WL 848085.
There are two answers to this contention. First, the footnote clearly states that the “government acquiesced in the granting of the certificate.” Having acquiesced in the granting of the certificate in the court below, it may not be contended that the Govеrnment was raising a serious jurisdictional argument before the Supreme Court. Second, and much more funda-
We are of the view that the teachings of Peguero do not address the precise issues presented in this case. There the Court did not have before it the issue of whether a certificate of appealability could issue for other than a claim of constitutional right. Specifically, the first sentence of the Court‘s opinion stated the question for decision:
We granted certiorari to resolve a Circuit conflict over whether a district court‘s failure to advise a defendant of his right to appeal as required by the Federal Rules of Criminal Procedure provides a basis for collateral relief even when the defendant was aware of his right to appeal when the trial court omitted to give the advice.
Peguero, 526 U.S. at 24. That was the only issue before the court and the teachings of that case must be limited to the рrecise issue decided. “[W]hen questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us.” Pennhurst, 465 U.S. at 119 (quoting Hagans v. Lavine, 415 U.S. 528, 533 n. 5 (1974)); see United States v. More, 7 U.S. (3 Cranch) 159, 172 (1805) (“No question was made, in that case, as to the jurisdiction. It passed sub silentio, and the court does not consider itself as bound by that case.“) (Marshall, C.J.).
In Edelman v. Jordan, 415 U.S. 651 (1974), the Court referred to a series of cases in which it reached the merits of challenges to federal welfare regulations brought by welfare recipients. In meeting for the first time whether the Eleventh Amendment precluded federal court jurisdiction to grant retroactive relief, the Court noted that it had previously decided the cases on the merits without meeting the question of jurisdiction. It referred also to Shapiro v. Thompson, 394 U.S. 618 (1969), where “the Eleventh Amendment objection to such retroactive relief was actually presented to this Court in a case which was orally argued.” Edelman, 415 U.S. at 670. Significantly, the Court explained why Shapiro and three other cases decided by the Court on the merits could not be interpreted as sub silentio deciding the issue of jurisdiction:
This Court, while affirming the judgment [in Shapiro], did not in its opinion refer to or substantially treat the Eleventh Amendment argument. Nor, of coursе, did the summary dispositions of the three District Court cases contain any substantive discussion of this or any other issues raised by the parties.
This case, therefore, is the first opportunity the Court has taken to fully explore and treat the Eleventh Amendment aspects of such relief in a written opinion . . . Having now had the opportunity to more fully consider the Eleventh Amendment holdings of those cases after briefing and argument, we disapprove the Eleventh Amendment holdings of those cases to the extent that they are inconsistent with our holding today.
The Court had a similar issue before it in Hagans v. Lavine, and noted:
In none of these cases was the jurisdiction issue squarely raised as a contention in the petitions for certiorari, jurisdictional statements, or briefs filed in this Court. Moreover, when questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us. . . . We there-
fore approach the question of the District Court‘s jurisdiction to entertain this suit as an open one calling for a canvass of relevant jurisdictional considerations.
Hagans, 415 U.S. at 535 n. 5 (citations omitted).
Applying the foregoing teachings to the issue at bar, we see that a year after the Peguero decision, in Slack v. McDaniel, speaking through Justice Kennedy, the same justice who authored the opinion in Peguero, the Court met the precise issue presented here:
Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy
§ 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find that the district court‘s assessment of the constitutional claims debatable or wrong . . . This construction gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying constitutional claims . . .
What the Supreme Court did not say in the 1999 Peguero case cannot trump what the court explicitly said in Slack a year later, especially when both opinions were authored by the same justice. Accordingly, we reject the argument that the Court‘s decision in Peguero runs counter to the holding we reach today—that a certificate of appealability in a case brought under
VI.
In determining whether the certificate of appealability was proper and thus whether we have jurisdiction to review this petition, we examine whether Cepero had made (1) a substantial showing of a deprivation of (2) a constitutional right, so as to invoke our
Section 2D1.1 of the Sentencing Guidelines provides a much greater sentence for drug offenses involving crack cocaine (100 to 1, based on drug amount) than for offenses involving powder cocaine or some other form of cocaine base. In James, we held that the Government was required to prove at sentencing that the defendant distributed crack cocaine, not just cocaine base, before
Cepero‘s allegation here, that the sentencing court misapplied the Sentencing Guidelines in his case, is a question that does not present a constitutional issue under
*
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*
*
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We will grant the Government‘s motion to dismiss the appeal for lack of subject-matter jurisdiction.
RENDELL, Circuit Judge, concurring in part and dissenting in part:
Today we decide that the issuance of a certificate of appealability by a District Court is not sufficient to permit our review of the merits, but, rather, that we are obliged to consider whether the appellant was entitled to a certificate of appealability based on our view that we only have subject matter jurisdiction to hear an appeal if the certificate of appealability was properly issued. We reach this conclusion without reference either to the statutory language or to Congress‘s intent, the two factors which have traditionally been the hallmarks of our jurisprudence when interpreting whether prerequisites for suit or appeal are subject matter jurisdictional in nature. See, e.g., Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (conсluding that “[t]he structure of Title VII, the congressional policy underlying it, and the reasoning of our cases all lead to” the conclusion that “filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court“); Shendock v. Director, OWCP, 893 F.2d 1458, 1462 (3d Cir. 1990) (en banc) (finding the 60 day filing requirement contained in
I submit that neither the statutory language of
This reading is buttressed by the fact that
Furthermore, if
It should be noted that two other provisions of
The lack of support for the conclusion that only the proper issuance of a certificate of appealability confers subject matter jurisdiction is particularly significant because, as the majority reasons and explains, Congress developed the certificate of appealability requirements from the preexisting certificate of probable cause mechanism. In a series of Supreme Court opinions addressing the contours of appellate review of the denial of habeas relief in
The Supreme Court most recently explained the impact of the issuance of a certificate of probable cause in Barefoot v. Estelle, 463 U.S. 880 (1983), which, of course, forms the basis for much of the debate over the meaning of the standard for the issuance of a certificate of appealability contained in the majority‘s opinion. In Barefoot, however, the Court also explained that: “When a certificate of probable cause is issued by the district court, as it was in this case, or later by the court of appeals, petitioner must then be afforded an opportunity to address the merits, and the court of appeals is obligated to decide the merits of the appeal.” Id. at 893 (emphasis added). Previously, in Carafas, the Court explained that review on the merits was necessary because “[a]nything less than this, as we held in Nowakowski, would negate the office of the certificate of probable cause.” Carafas, 391 U.S. at 242. The Supreme Court noted that this did not, however, prevent an appellate court from affirming the district court‘s decision on the merits in a summary, abbreviated fashion upon a finding that the claim was frivolous or otherwise foreclosed. See Barefoot, 463 U.S. at 894.
In imposing the certificate of appealability requirement on habeas petitions in both state and federal cases, Congress specifically addressed two parts of the old certificate of probable cause mechanism. As we decide in this case, Congress strengthened the standard for the issuance of a certificate announced in Barefoot. Congress also addressed the question of whether a court may issue a certificate limited to particular issues, see
Although the majority relies upon Hohn to reach its conclusion, I see nothing in Hohn, or for that matter, Peguero v. United States, 526 U.S. 23 (1999), or Slack v. McDaniel, 529 U.S. 473 (2000), that undermines my conclusion. In Hohn, the Supreme Court simply concluded that the application for, and denial of, a certificate of appealability constituted a “case in the court of appeals” such that the Supreme Court had statutory jurisdiction to review the denial under
The absence of a certificate of appealability precludes an appeal; should an erroneously issued certificate be treated the same as the lack of a certificate? We think not. The certificate is a screening device, helping to conserve judicial (and prosecutorial) resources. The obligation to identify a specific issue concentrates the parties’ attention (and screens out weak issues); the limitation to constitutional claims also reduces the number of appeals while simultaneously removing a category of claim that under Davis [v. United States, 417 U.S. 333 (1974)], and Reed [v. Farley, 512 U.S. 339 (1994)] has poor prospects. Once a certificate has issued, however, the case proceeds to briefing and decision; the resources have been invested. It is too late to narrow the issues or screen out weak claims. Perhaps a motion to dismiss an appeal on the ground that a certificate was improperly issued would serve sоme function. But once the briefs have been written and the case heard, there is little point in scruti-
nizing the certificate of appealability. An obligation to determine whether a certificate should have been issued, even if the parties do not present this issue for decision—a step entailed by the conclusion that a proper certificate is a jurisdictional requirement—would increase the complexity of appeals in collateral attacks and the judicial effort required to resolve them, the opposite of the legislative plan.
Young, 124 F.3d at 799 (emphasis added).
The strongest support for the majority‘s reliance on Hohn comes from the Supreme Court‘s various characterizations of the role of the certificate of appealability as “jurisdictional.” However, I am unwilling to place significance on random statements that have no bearing on the actual issue raised in the case, let alone its holding. I also note that in Slack, decided after Hohn, the Supreme Court characterized the certificate of appealability in a way that would suggest it is not jurisdictional in the manner the majority concludes. See Slack, 529 U.S. at 484 (“The [certificate of appealability] statute establishes procedural rules and requires a threshold inquiry into whether the circuit court may entertain an appeal.“). Further, in Peguero, the Supreme Court addressed a federal question on the merits without reviewing either the propriety of the initial grant of a certificate or the Court‘s own appellate jurisdiction to hear the case. While I agree with the majority that Peguero does not compel a conclusion as to the meaning of
Numerous efforts have been made over the years to streamline the process by which the federal courts are to sift out those habeas petitions which are unworthy of the expenditure of additional judicial resources, and Congress considered numerous options before passing AEDPA. See Hunter v. United States, 101 F.3d 1565, 1578-83 (11th Cir. 1996) (tracing and discussing the numerous proposed reform bills eventually leading to the enactment of AEDPA); Judge Henry J. Friendly, Is Innocence Irrelevant?: Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142 (1970) (suggesting that district cоurts should not be permitted to grant certificates of probable cause and suggesting that the certificate of probable cause requirement be extended to petitions from federal custody). Given the concerns expressed by Congress regarding the efficiency of the process, I cannot help but agree with the other circuit courts of appeals that have counseled against an interpretation of the statute that would require us to engage in a threshold examination of the decision of the district court to issue a certificate of appealability. See, e.g., Young, 124 F.3d at 799. While it could be argued that a threshold review of the issuance of the certificate of appealability in cases like this, where the error claimed is not constitutional, may promote efficiency, I note that after our decision in this case clarifies the meaning of
While a desire for efficiency should not dictate that we shirk our duty to examine our jurisdiction, if such a duty is clearly imposed by the statute, knowledge that concerns about efficiency were at the heart of Congress‘s decision to modify the certificate requirements should inform our interpretation of what the statute does in fact require. I would hold the modification of the Barefoot standard was meant to restrict the issuance of a certificate of appealability, but that once issued, such issuance should lead to merits review.
Chief Judge BECKER and Judge SLOVITER join in this concurring and dissenting opinion.