JOHN GARY HARDWICK, PETITIONER-APPELLANT,
v.
HARRY K. SINGLETARY, JR., SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, RESPONDENT-APPELLEE

11th Cir. | 1997-10-24
No. 97-2319
Before ANDERSON and BIRCH, Circuit Judges.
126 F.3d 1312 Court of Appeals for the Eleventh Circuit (1997) Positive Treatment
Cited by 16 cases
Opinion of the Court
PER CURIAM:

PER CURIAM: Appellee Harry K.

Singletary, Jr. asks us to reexamine our decision in Hardwick v. Singletary, 122 F. 3d 935 (11th Cir.1997).

No member of this panel nor any other judge in regular active service on the court having requested that the court be polled on rehearing en banc (Rule 35, Fed. R.App. P.; 11th Cir. Rule 35-5), the suggestion of rehearing en banc is DENIED.

However, upon reconsideration, the opinion of this panel is vacated solely as to the last paragraph, in which we vacated the district court’s order and remanded this case for a reevaluation of the petitioner’s application for a certificate of probable cause.

The following three paragraphs are entered in its place: 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, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983) (internal quotes and citation omitted).

Under the AEDPA, a certificate of appealability may be issued only where the applicant has made a “substantial showing of the denial 'of a constitutional right.” 28 U.S.C. § 2253(c)(2).

Notwithstanding a marginal variance in the language identifying the necessary showing with respect to certificates of probable cause and appealability, we conclude that the standard governing, certificates of probable cause and certificates of appealability is materially identical.

See Green v. Johnson, 116 F. 3d 1115, 1120 (5th Cir.1997) (“[T]he AEDPA was intended to codify the Barefoot standard and thus ... the standard governing the issuance of a COA requires the same showing as that for obtaining a CPC.”).

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.

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. .

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.

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  • Slack v. McDANIEL, 529 U.S. 473 (U.S. 2000)
    …3d 430, 431, n. 2 (CA2 1997); United States v. Kunzman, 125 F. 3d 1363, 1364, n. 2 (CA10 1997); United States v. Skandier, 125 F. 3d 178, 179-182 (CA3 1997); Hardwick v. Singletary, 122 F. 3d 935, 936 (per curiam), vacated in part on other grounds, 126 F. 3d 1312 (CA11 1997) (per curiam); Arredondo v. United States, 120 F. 3d 639, 640 (CA6 1997); United States v. Carter, 117 F. 3d 262, 264 (CA5 1997) (per curiam); but see Tiedeman v. Benson, 122 F. 3d 518, 520-521 (CA8 1997). I do, however, join the balance…
  • Tompkins v. Moore, 193 F.3d 1327 (11th Cir. 1999)
    …use under pre-AEDPA law, instead of a certificate of appealability under post-AEDPA law, see 28 U.S.C. § 2253(c), was the proper procedural route for permission to appeal. See Hardwick v. Singletary, 122 F. 3d 935 (11th Cir.), modified on rehearing, 126 F. 3d 1312 (11th Cir.1997). The district court recognized as much, and it also recognized that in issuing a certificate of probable cause — unlike a certificate of appealability — it need not specify the issues for which the necessary showing to permit the ap…
  • Hardwick v. Crosby, 320 F.3d 1127 (11th Cir. 2003)
    …k’s motion for relief from the order, we construed the district court’s certificate of appealability “as a grant of a certificate of probable cause to appeal all issues presented in the petitioner’s federal habeas petition.” Hardwick v. Singletary, 126 F. 3d 1312, 1313 (11th Cir.1997) (per curiam). After oral argument, we directed counsel to provide supplemental briefs discussing the effect of Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000), on this appeal. We now turn to the three…

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