ON SUGGESTION OF- REHEARING EN BANC.
Appellee Harry K. Singletary, Jr. asks us to reexamine our decision in
Hardwick v. Singletary,
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,
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 AED-PA became effective, we construe the grant of a certificate of appealability as a grant of a certificate of probable cause to appeal all issues presented in the petitioner’s federal habeas petition. 2
In sum, although we agree with the petitioner that the district court erroneously applied the certificate of appealability provision under the AEDPA, his motion to relinquish jurisdiction and remand this cause to the district court is DENIED. The district court’s order granting a certificate of appeal-ability, therefore, will be construed as a grant of probable cause as to the entire petition. Accordingly, Hardwick’s appeal from the denial of his petition for federal habeas corpus relief may proceed.
Notes
. Similarly, where the district court has denied the certificate of appealability under the AEDPA with respect to. petitions pending on the date of the new law’s enactment, we will construe the order as a denial of a certificate of probable cause and, consistent with pre-AEDPA practice, evaluate whether the certificate was improvidently denied.
