United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided November 9, 1999
No. 99-3063
United States of America,
Appellee
v.
Winston Delano Weaver,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 92cr00038)
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ON A CERTIFICATE OF APPEALABILITY
FROM THE DISTRICT COURT
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Wilma Antoinette Lewis, U.S. Attorney, John Robert Fish-
er, Assistant U.S. Attorney, and Mary-Patrice Brown, Assis-
tant U.S. Attorney, entered appearances for appellee United
States of America.
Winston Delano Weaver, pro se.
Before: Wald, Ginsburg, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: Winston Weaver appeals the
denial of his habeas corpus petition filed pursuant to 28
U.S.C. s 2255. Because appellate review is limited to the
issues specified in the certificate of appealability, and the
district court did not specify the issue(s) with respect to
which Weaver made a substantial showing that he was denied
a constitutional right, we remand the record for supplementa-
tion.
I. Background
In 1992 Winston Weaver was convicted of conspiracy to
distribute more than 50 grams of cocaine and cocaine base,
two counts of attempted distribution of cocaine and cocaine
base within 1,000 feet of a school, and unlawful use of a
communication facility. Weaver's conviction and 120-month
sentence were affirmed by this court on direct appeal. Unit-
ed States v. Weaver, 55 F.3d 685 (D.C. Cir. 1995) (table). In
1997 Weaver filed a motion to vacate his conviction pursuant
to 28 U.S.C. s 2255, based upon ineffective assistance of
counsel and prosecutorial misconduct. He claimed his trial
counsel was ineffective for failing to cross-examine witnesses
properly, to locate a defense witness, and to obtain impeach-
ment evidence against witnesses, and that the prosecutor
engaged in misconduct.
In April 1999, after briefing but without argument, the
district court denied Weaver's s 2255 motion. Weaver then
filed with the district court an application for a certificate of
appealability (COA), asserting that the court improperly
failed to resolve certain issues and to provide him with an
evidentiary hearing, which he deemed particularly important
because he was trying to establish (1) when defense counsel
and the Government learned that one of the Government's
witnesses had testified falsely; and (2) that counsel had made
no attempt to locate a defense witness. The district court
granted the COA.
II. Discussion
The district court is to issue a COA only if the applicant
has made "a substantial showing of the denial of a constitu-
tional right." See 28 U.S.C. s 2253(c)(2). The COA must
"indicate which specific issue or issues satisfy" that standard,
28 U.S.C. s 2253(c)(3)--unless perhaps the petitioner has
presented only one issue to the district court. See Else v.
Johnson, 104 F.3d 82, 83 (5th Cir. 1997). Appellate review is
limited to the issue(s) specified in the COA. See, e.g., Mur-
ray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998).
In this case the district court did not, as required by 28
U.S.C. s 2253(c)(3), specify the issue or issues as to which
Weaver made a substantial showing he was denied a constitu-
tional right. Because Weaver's application for a COA raises
several claims, it is impossible to glean from the present
record which issue(s) the district court thought worthy of
appeal. Cf. Murray, 145 F.3d at 1250-51 (determining that
while court of appeals could not decide issue not specified in
COA, it could "construe the issue specification in light of the
pleadings and other parts of the record"). Therefore we
must remand the record for the district court to specify the
issue or issues for appeal. See Muniz v. Johnson, 114 F.3d
43, 46 (5th Cir. 1997); Lyons v. Ohio Adult Parole Auth., 105
F.3d 1063, 1076 (6th Cir. 1997); Hunter v. United States, 101
F.3d 1565, 1584 (11th Cir. 1996); but cf. Tiedeman v. Benson,
122 F.3d 518, 522 (8th Cir. 1997) (holding remand for specifi-
cation of issues unnecessary where clear from briefing appel-
lant had not made substantial showing he was denied any
constitutional right).
It is so ordered.