Else v. Johnson

Opinion

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 _______________________________________________________ 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withdrawn and replaced with the following.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

2 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).

3 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.