Else v. Johnson ( 1997 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-40404
_____________________
PAUL ELSE,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
_______________________________________________________
Appeal from the United States District Court for
the Eastern District of Texas
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February 20, 1997
ON RECONSIDERATION
Before POLITZ, Chief Judge, REAVLEY and DENNIS, Circuit Judges.
PER CURIAM:
The opinion previously entered in this case is hereby
withdrawn and replaced with the following. The district court
granted a certificate of probable cause for the appeal of the
denial of habeas relief pursuant to 28 U.S.C. § 2254. Several days
prior to this grant, a new law became effective: the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-
132, 110 Stat. 1214 (1996). We hold that the district court had
the authority to issue a certificate of appealability under the
AEDPA amendments to Federal Rule of Appellate Procedure 22(b) and
28 U.S.C. § 2253(c), and that the certificate meets the threshold
requirements of appealability. On the merits we find no error, and
affirm.
Prior to April 24, 1996, the date the AEDPA became effective,
Rule 22(b) and 28 U.S.C. § 2253 required the issuance of a
certificate of probable cause by a district or circuit judge prior
to processing the appeal by an applicant for habeas arising from
state detention. Rule 22(b), as revised by the AEDPA, now requires
the issuance of a certificate of appealability by a “district or
circuit judge” pursuant to 28 U.S.C. § 2253(c) before § 2254
appeals will be processed. AEDPA, § 103 (codified at FED.R.APP.P.
22(b) (Supp.1996)). The AEDPA revised 28 U.S.C. § 2253 so as to
require the issuance of a certificate of appealability by a
“circuit justice or judge” before an appeal may be taken from the
final order in a proceeding directed at either state or federal
detention. AEDPA, § 102 (codified at 28 U.S.C. § 2253(c)(1)(Supp.
1996)).
The first question is whether, under the AEDPA amendments, the
district courts have the authority to issue certificates of
appealability for appeals from habeas actions arising from state
detention. While Rule 22(b) states that district judges do have
this authority, the language of § 2253 does not expressly name
“district” judges as those who may issue certificates of
appealability. If there is any inconsistency, we would construe
the express grant of authority to district courts as compelling,
and we hold that district courts retain the authority to issue
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certificates of appealability for § 2254 petitions under the
AEDPA.1
The question remains whether the certificate of probable cause
issued by the district court meets the threshold requirements of
appealability. 28 U.S.C. § 2253 now requires a district court
issuing a certificate of appealability to indicate which specific
issue or issues present a substantial showing by the petitioner of
the denial of a constitutional right. AEDPA, § 102 (codified at 28
U.S.C. § 2253(c)(3)(Supp. 1996)). In the present case, only one
issue was presented in Else’s habeas petition. In granting a
certificate of probable cause, the district court clearly certified
this sole issue for appeal. We find that this meets the threshold
requirement of § 2253(c)(3).
We have previously held that the standard for issuance of a
certificate of appealability pursuant to the AEDPA is the same as
was required formerly for a certificate of probable cause.
Drinkard v. Johnson, 97 F.3d 751, 756 (5th Cir. 1996). We will
therefore treat the district court’s certificate of probable cause
as a certificate of appealability and address the merits of Else’s
claim.
Else’s complaint is that the Texas Parole Board violated his
due process rights by considering a dismissed criminal charge
against him during his parole revocation hearing. The district
1
The Eleventh Circuit sitting en banc recently held that
under the AEDPA amendment of § 2253, district court judges have the
authority to issue certificates of appealability for §§ 2254 and
2255 petitions. Hunter v. United States, 101 F.3d 1565, 1583-84
(11th Cir. 1996)(en banc).
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court correctly rules that no constitutional claim was raised. See
Villarreal v. U.S. Parole Comm’n, 985 F.2d 835, 839 (5th Cir.
1993).
AFFIRMED.
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