United States v. Asrar , 108 F.3d 217 ( 1997 )

ORDER

On November 20,1996, Rafat Asrar timely filed a notice of appeal from the district court’s denial of his 28 U.S.C. § 2255 motion. Asrar did not request, nor has he received, a certificate of appealability from either the district court or this court.

Section 102 of the Antiterrorism and Effective Death Penalty Act of 1996 (“the AED-PA”), Pub.L. No. 104 — 132, 110 Stat. 1214, requires that “a circuit justice or judge” issue a certificate of appealability for an appeal to be taken from the final order in a 28 U.S.C. §§ 2254 or 2255 proceeding. 28 U.S.C. § 2253(e)(1).¹ Section 103 of the AEDPA amends Federal Rule of Appellate Procedure 22(b) and establishes the procedure for granting or denying a certificate in sections 2254 and 2255 proceedings.²

The phrase “circuit justice or judge” contained in 28 U.S.C. § 2253(c)(1) raises the question of whether the AEDPA places the authority to issue certificates of appealability in sections 2254 and 2255 proceedings exclusively with the court of appeals. In Hunter v. United States, 101 F.3d 1565 (11th Cir.1996) (en banc) (order), the Eleventh Circuit Court of Appeals addressed this question in an extended analysis. We agree with the Eleventh Circuit that under the AEDPA district courts possess the authority to issue certificates of appealability in section 2255 as well as section 2254 proceedings. Id. at 1583. See also Else v. Johnson, 104 F.3d 82 (5th Cir.1997) (district courts may issue certificates of appealability under the AEDPA in § 2254 cases); Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063 (6th Cir.1997) (same).

District courts in this circuit should process notice of appeals from final orders in sections 2254 and 2255 proceedings in which the action was filed in the district court on or after April 24, 1996 in the same manner as the courts processed notice of appeals in section 2254 proceedings before the AED-PA.³ Upon the filing of a notice of appeal and a request for a certificate of appealability, the district court shall indicate which specific issue or issues satisfy the standard for issuing a certificate, or state its reasons why a certificate should not be granted. 28 U.S.C. § 2253(e)(3); Fed. RApp. P. 22(b). If no express request is made for a certificate of appealability, the notice of appeal shall be deemed to constitute a request for a certificate. Fed. RApp. P. 22(b). Finally, if the district court declines to issue a certificate, the Clerk of the district court shall forward to this court the case file with the notice of appeal, the district court’s final order, and the order denying the certificate. Id.

Accordingly, we remand this case to the district court for the limited purpose of granting or denying a certificate of appeala-bility within 42 days of this order.

1 . 28 U.S.C. § 2254 governs final orders in a habeas proceeding in which the detention complained of arises out a process issued by a state court. 28 U.S.C. § 2255 permits federal prisoners to file a motion to vacate, set aside or correct their sentence.

2 . New Rule 22(b) provides:

In a habeas corpus proceeding in which 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 appealability pursuant to section 2253(c) of title 28, United States Code. If an appeal is taken by the applicant, the district judge who rendered the judgment shall either issue a certificate of appealability 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 proceedings in the district court. If the district judge denied the certificate, the applicant for the writ may then request issuance of the certificate by a circuit judge. If such 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 appealability is not required.

3 .Asrar filed his § 2255 motion in the district court on June 20, 1996. Therefore, the AEDPA applies to this case. See Jeffries v. Wood, 103 F.3d 827 (9th Cir.1996) (en banc) (order) (amendments to Chapter 153 of Title 28 of the United States Code contained in Title I of the AEDPA do not apply to cases filed in the federal courts prior to April 24, 1996, the effective date of the AEDPA).