United States v. Cepero

Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit

8-17-2000

United States v. Cepero
Precedential or Non-Precedential:

Docket 99-3047

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Filed August 17, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-3047

UNITED STATES OF AMERICA

v.

ANGEL CEPERO
a/k/a Angel Villar-Cepero
a/k/a Mosquito
Angel Cepero,
Appellant.

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 97-cr-00110-3)
District Judge: Honorable William W. Caldwell

Argued March 6, 2000

Before: SCIRICA, ALITO and ALDISERT, Circuit Judges.

Re-Argued May 24, 2000

Before: BECKER, Chief Judge, SLOVITER, MANSMANN,
GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH,
McKEE, RENDELL, BARRY, FUENTES and ALDISERT,
Circuit Judges.

(Filed: August 17, 2000)

Theodore Sliwinski, Esq. (argued)
45 East River Road
East Brunswick, NJ 08816

ATTORNEY FOR APPELLANT,
Angel Cepero
 David M. Barasch
United States Attorney
Theodore B. Smith, III (argued)
Assistant United States Attorney
Kim Douglas Daniel
Assistant United States Attorney
Federal Building
228 Walnut Street
Harrisburg, PA 17108

ATTORNEYS FOR APPELLEE,
United States of America

Peter Goldberger
Law Offices of Peter Goldberger
50 Rittenhouse Place
Ardmore, PA 19003-2276

ATTORNEY FOR AMICUS CURIAE,
National Association of Criminal
Defense Lawyers

OPINION OF THE COURT

ALDISERT, Circuit Judge:

We must decide whether the Antiterrorism and Effective
Death Penalty Act of 1996 precludes our review of
Appellant's unsuccessful S 2255 motion to correct his
sentence, notwithstanding the District Court's issuance of
a certificate of appealability under 28 U.S.C.S 2253.
Appellant contends that the District Court erred by
sentencing him under U.S.S.G. S 2D1.1 because the
Government did not prove the substance involved in his
criminal offenses was crack cocaine. The court order
declared: "A certificate of appealability on the crack-
enhancement is granted. It is denied on all other issues."
App. at 113a. The Government now moves for dismissal of
this appeal on the grounds that the District Court
erroneously issued the certificate of appealability because
Cepero did not make a "substantial showing of the denial of
a constitutional right" as required under S 2253(c)(2) so as
to invoke our limited power to review the denial of his

2
S 2255 petition. We will grant the Government's motion to
dismiss.

I.

In April 1997, Angel Cepero was indicted along with two
co-defendants for conspiracy to distribute and possess with
intent to distribute "cocaine and more than 50 grams of
cocaine base, a/k/a `crack' cocaine" in violation of 21
U.S.C. SS 841(a) and 846. The indictment listed the overt
acts committed in furtherance of the conspiracy as the
delivery and sale of "cocaine base," but did not specifically
mention "crack cocaine."1

An assistant federal public defender was appointed as
Cepero's counsel, and in June and July 1997 filed two
pretrial motions, both of which referred to the substance at
issue as "crack cocaine." Shortly thereafter, Cepero
executed a plea agreement in which he agreed to plead
guilty to the conspiracy count, which paragraph 1 identified
as "conspiracy to distribute more than 5 grams of cocaine
base." In pertinent part, paragraph 1 stated also that the
"maximum penalty for the offense is imprisonment for a
period of 40 years [and] a fine of $2,000,000," which
corresponds to the maximum penalties for crack cocaine
under 21 U.S.C. S 841(b)(1)(B)(iii). Paragraph 9 of the plea
agreement stipulated that his offense conduct "involved no
less than 35 but no more than 50 grams of cocaine base."
Cepero and his public defender reviewed and signed the
agreement.

Three days later a guilty-plea hearing was held, during
which the sentencing court, the prosecutor and the public
defender all referred to the offense as involving either
cocaine or cocaine base. The prosecutor noted the statutory
_________________________________________________________________

1. In 1993 the Sentencing Commission amended the Guidelines to
include the following definition of cocaine base:

"Cocaine base," for the purposes of this guideline, means "crack."
"Crack" is the street name for a form of cocaine base, usually
prepared by processing cocaine hydrochloride and sodium
bicarbonate, and usually appearing in a lumpy, rocklike form.

U.S.S.G. S 2D1.1.

3
range of penalties as being from five to 40 years and a
maximum fine of $250,000, based on the agreement that
Cepero's conduct involved 35 to 50 grams of cocaine base.
The prosecutor summarized the Government's case and
consistently referred to the drug transaction as involving
cocaine or cocaine base. Cepero agreed that this was an
accurate account of his involvement and pled guilty to the
conspiracy charge.

The presentence report identified the substance at issue
as "crack cocaine." The report concluded that Cepero's base
offense level was 30, derived from U.S.S.G. S 2D1.1 for
offenses involving at least 35 grams but less than 50 grams
of cocaine base. After a two point deduction for acceptance
of responsibility, his offense level was 28, and his criminal
history category was set at III, which resulted in a guideline
range of 97 to 121 months. Neither the Government nor the
defendant objected to the report. On November 2, 1997,
Cepero was sentenced to 97 months imprisonment and he
did not appeal.

On September 20, 1998, Cepero filed his pro se habeas
petition in the District Court pursuant to 28 U.S.C.S 2255
and alleged inter alia that the Government failed to prove at
sentencing that the substance in question was crack
cocaine and not merely cocaine powder, which carries a
lesser sentence.2 The court denied his petition by
memorandum order but granted him a certificate of
appealability under S 2253(c) with respect to the "crack-
enhancement" issue--i.e., whether the Government
adequately proved at sentencing that he had conspired to
distribute crack cocaine. Cepero timely filed his notice of
appeal and thereafter the Government moved to dismiss for
want of subject-matter jurisdiction. We appointed counsel
and referred the matter to a merits panel, to which both
parties submitted briefs and argued their positions.
_________________________________________________________________

2. Section 2D1.1 of the Sentencing Guidelines directs a sentencing court
to use the same base offense level for a crime involving 1.5 kilograms or
more of cocaine base, or crack cocaine, that it would use for a crime
involving 150 kilograms or more of powdered cocaine. Thus, an
enhanced sentence exists in crimes involving crack cocaine vis-a-vis
powdered cocaine.

4
After argument, we granted re-hearing en banc to decide
whether the District Court erroneously granted Cepero a
certificate of appealability under 28 U.S.C. S 2253(c), as
amended by the Antiterrorism and Effective Death Penalty
Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996).
We exercise plenary review over the District Court's legal
conclusions and apply a clearly erroneous standard to the
court's factual findings. Rios v. Wiley, 201 F.3d 257, 262
(3d Cir. 2000).

II.

Before the enactment of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), a petitioner in federal
custody who was denied relief by a district court on a
S 2255 petition could appeal to the court of appeals without
obtaining a certificate of probable cause. See 28 U.S.C.
S 2253 (1995) (pre-AEDPA language); United States v. Eyer,
113 F.3d 470, 472 (3d Cir. 1997). By contrast, a petitioner
in state custody challenging his detention could not appeal
the denial of his petition "unless the justice or judge who
rendered the order or a circuit justice or judge issue[d] a
certificate of probable cause." 28 U.S.C. S 2253 (1995) (pre-
AEDPA language); see Eyer, 113 F.3d at 472.

Section 102 of the Antiterrorist and Effective Death
Penalty Act amended the jurisdictional dimension ofS 2253
to provide:

(c)(1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken
to the court of appeals from--

(A) the final order in a habeas corpus proceeding in
which the detention complained of arises out of
process issued by a State court; or

(B) the final order in a proceeding under section
2255.

(2) A certificate of appealability may issue under
paragraph (1) only if the applicant has made a
substantial showing of the denial of a constitutional
right.

5
 (3) The certificate of appealability under paragraph (1)
shall indicate which specific issue or issues satisfy the
showing required by paragraph (2).

28 U.S.C. S 2253(c)(1)-(3) (as amended Apr. 24, 1996)
(emphasis added). The AEDPA thus replaced certificates of
probable cause with "certificates of appealability" and
required prisoners in federal custody to obtain certificates
of appealability before appealing from the denial of their
S 2255 petitions.

In our prior decisions interpreting the amended version of
S 2253, we have held that, notwithstanding the ambiguous
language of the statute which seems to empower only
circuit court judges with the authority to grant certificates
of appealability, see S 2253(c)(1), the district court judge
who denies the prisoner's habeas petition is also authorized
to certify issues for appeal. See Eyer, 113 F.3d at 472-473;
accord Lozada v. United States, 107 F.3d 1011, 1016 (2d
Cir. 1997) ("We therefore uphold the authority of district
judges to issue [certificates of appealability], at least in
section 2254 cases."); United States v. Asrar , 108 F.3d 217,
218 (9th Cir. 1997); Lyons v. Ohio Adult Parole Auth., 105
F.3d 1063, 1066-1073 (6th Cir. 1997); Hunter v. United
States, 101 F.3d 1565, 1573-1577 (11th Cir. 1996) (en
banc).

III.

We recognize that several courts of appeals have passed
on the question we decide today--whether we have
jurisdiction under S 2253(c) to review the denial of a S 2255
petition where the Government challenges the validity of a
certificate of appealability issued by a district court. In
United States v. Eyer, we assumed jurisdiction to review the
denial of a S 2255 petition notwithstanding the questioned
validity of the certificate of appealability, but in that case
the Government opposed only the power of the district
court to issue certificates of appealability and took the
position that, if the district court was authorized to certify
issues for appeal under S 2253(c), then the case should be
decided on the merits. We concluded that district court
judges were authorized to issue certificates of appealability

6
and thereafter assumed jurisdiction. Nevertheless we
recognized the lingering question of whether the petitioner
made a "substantial showing of the denial of a
constitutional right."

[Petitioner] raises questions . . . involving issues of
statutory construction. Therefore, it is possible that
[he] does not raise an issue involving a constitutional
right.

Here [ ] we avoid the procedural point because the
government . . . . took the position that if the district
court is empowered to issue certificates of appealability
under section 2253(c)(1), we should decide this case on
the merits. Thus, the determination of the meaning of
"constitutional right" in section 2253(c)(2) is not
necessary to the disposition of this appeal.

In reaching our result, we have not disregarded our
practice of examining our jurisdiction before reaching
the merits of an appeal, and we recognize the
possibility that the procedural problems we have
identified [i.e., petitioner's possible failure to raise
issues implicating constitutional rights] could be
considered jurisdictional. Instead, we are applying the
settled principle that an appellate court, confronted by
a difficult jurisdictional or quasi-jurisdictional
question, may forego its resolution if the merits of the
appeal are, as here, straightforward and easily resolved
in favor of the party or parties to whose benefit the
objection to jurisdiction would redound.

Eyer, 113 F.3d at 474 (internal quotation marks and
citations omitted). This practice of exercising"hypothetical
jurisdiction" is neither new nor specific to certificates of
appealability. See generally Steel Co. v. Citizens for Better
Environment, 523 U.S. 83, 93-94 (1998) (collecting cases).
Nevertheless, in 1998 the Supreme Court largely rejected
this custom. See id. at 94. We recently discussed the
Court's teachings in Steel Co. vis-a-vis our past exercise of
hypothetical jurisdiction in Eyer:

We recognize that the Supreme Court in Steel Co. [ ]
disapproved the practice of a court of appeals, such as
in Eyer [ ], avoiding difficult jurisdictional questions

7
 when a merits determination would favor the party who
would benefit if it declined to exercise jurisdiction. But
if we were to determine that we will not issue a
certificate of appealability because [petitioner] has not
demonstrated that he is entitled to one under 28
U.S.C. S 2253(c)(3), then we would find that this court
does not have jurisdiction to go forward in this appeal.

United States v. Williams, 158 F.3d 736, 741-742 (3d Cir.
1998). We continue to recognize that the Court's opinion in
Steel Co. stands for the proposition that an Article III court
may not assume subject-matter jurisdiction to reach the
merits of an appeal.

Several of our sister courts of appeals have reached the
merits of prisoners' appeals from unsuccessful S 2255
petitions based on the reasoning that S 2253(c)(2) is not
jurisdictional in nature. In Young v. United States, 124 F.3d
794, 799 (7th Cir. 1997), cert. denied, 524 U.S. 928 (1998),
the Court of Appeals for the Seventh Circuit held that an
erroneously issued certificate of appealability satisfied the
requirements of S 2253(c)(2) regardless of whether it was
properly issued, reasoning as follows:

The certificate is a screening device, helping to
conserve judicial (and prosecutorial) resources. . . Once
a certificate has issued, however, the case proceeds to
briefing and decision; the resources have been
invested. It is too late to narrow the issues or screen
out weak claims. Perhaps a motion to dismiss an
appeal on the ground that a certificate was improperly
issued would serve some function. But once the briefs
have been written and the case heard, there is little
point in scrutinizing the certificate of appealability. An
obligation to determine whether a certificate should
have been issued, even if the parties do not present
this issue for decision--a step entailed by the
conclusion that a proper certificate is a jurisdictional
requirement--would increase the complexity of appeals
in collateral attacks and the judicial effort required to
resolve them, the opposite of the legislative plan. So we
proceed to the merits as the parties have presented
them.

8
Id. at 799.

The Court of Appeals for the Tenth Circuit reached the
same conclusion and relied on the Young reasoning. See
United States v. Talk, 158 F.3d 1064, 1065 (10th Cir.
1998), cert. denied, 525 U.S. 1164 (1999). Similarly, the
Court of Appeals for the Second Circuit adopted this
reasoning in Soto v. United States, 185 F.3d 48 (2d Cir.
1999), emphasizing that "the certificate is a screening
device" and that it had previously intimated the same "gate-
keeping" view of the certificate of appealability requirement
in Lozada v. United States, 107 F.3d 1011, 1015 (2d Cir.
1997). It reasoned that "dismissing an appeal after a
certificate of appealability has already issued would be of
little utility; installing this Court as a gate keeper for the
gate keeper would be redundant." Soto, 185 F.3d at 52.

IV.

The difficulty that we have with the approach of our
sister courts of appeals is that they fail to recognize the
precise jurisprudential nature of a certificate of
appealability as defined in Hohn v. United States, 524 U.S.
236 (1998). The centerpiece of the reasoning of those courts
is that a certificate is an administrative function, described
as "a screening device, helping to conserve judicial (and
prosecutorial) resources." Young, 124 F.3d at 799; see Talk,
158 F.3d at 1065, 1068; Soto, 185 F.3d at 52.3

The question for decision in Hohn was "whether the
Court has jurisdiction to review decisions of courts of
appeals denying applications for certificate of appealability,"
524 U.S. at 238-239. To reach this question the Court first
had to decide whether the issuance of a certificate of
appealability by a court of appeals constituted a judicial
function, rather than an administrative function, and was
therefore subject to judicial review. The Court rejected the
_________________________________________________________________

3. Because the Court of Appeals for the Seventh Circuit decided Young in
August of 1997, it did not have the advantage of the Supreme Court's
June 15, 1998 decision in Hohn. However, the Courts of Appeals for the
Second and Tenth Circuits decided Soto (July 21, 1999) and Talk (Sept.
11, 1998), respectively, after Hohn was handed down.

9
notion advanced by the respondent in the case before it,
and explicit in the reasoning in Young, Talk and Soto, that
a certificate of appealability is merely a screening device. To
the contrary, the Court held that decisions regarding
applications for certificates of appealability are not merely
an administrative function of the courts. Hohn , 524 U.S. at
245. The teaching of Hohn is clear and unambiguous:

Decisions regarding applications for certificates of
appealability, in contrast, are judicial in nature. It is
typical for both parties to enter appearances and to
submit briefs at appropriate times and for the court of
appeals to enter a judgment and to issue a mandate at
the end of the proceedings, as happened here. . . .
Construing the issuance of a certificate of appealability
as an administrative function, moreover, would suggest
an entity not wielding judicial power might review the
decisions of an Article III court. In light of the
constitutional questions which surround such an
arrangement, see Gordon [v. United States, 117 U.S.
Appx. 697, 702, 704 (1864)]; Hayburn's Case , 2 Dall.
409 (1792), we should avoid any such implication.

Hohn, 524 U.S. at 245-246 (emphasis added). The Court
then proceeded to analogize Ex parte Quirin, 317 U.S. 1
(1942):

We held the request for leave [to appeal] constituted a
case in the district court over which the court of
appeals could assert jurisdiction, even though the
district court had denied the request. We reasoned,
"[p]resentation of the petition for judicial action is the
institution of a suit. Hence the denial of the district
court of leave to file the petitions in these causes was
the judicial determination of a case or controversy,
reviewable on appeal to the Court of Appeals." 317
U.S., at 24.

Hohn, 524 U.S. at 246. The Court concluded by stating,

the circumstance that the question before the court is
a preliminary issue, such as the denial of a certificate
of appealability or venue, does not oust appellate
courts of the jurisdiction to review a ruling on the
matter.

10
Id. at 248.

In view of the explicit language of the Court, we must
reject the analysis of our sister circuits and decline the
notion that this court is bound by the District Court's
issuance of a certificate of appealability. The issuance of
the certificate in the case before us is not merely an
exercise of judicial gate-keeping, but rather, in the language
of the Court, is "the judicial determination of a case or
controversy, reviewable on appeal to the Court of Appeals."
Hohn, 524 U.S. at 246 (quoting Quirin , 317 U.S. at 24). We
now proceed into a review of the order granting the
certificate of appealability.

V.

Our first task in our review is to address Section 102 of
the Antiterrorist and Effective Death Penalty Act of 1996,
which amended the jurisdictional dimension of S 2253:

(c)(1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken
to the court of appeals from--

(A) the final order in a habeas corpus proceeding in
which the detention complained of arises out of
process issued by a State court; or

(B) the final order in a proceeding under section
2255.

(2) A certificate of appealability may issue under
paragraph (1) only if the applicant has made a
substantial showing of the denial of a constitutional
right.

(3) The certificate of appealability under paragraph (1)
shall indicate which specific issue or issues satisfy the
showing required by paragraph (2).

28 U.S.C. S 2253(c)(1)-(3) (emphasis added). It had been
suggested that the use by Congress of the phrase
"substantial showing of a denial of a constitutional right"
was inadvertent, inasmuch as it intended to codify the
teachings of Barefoot v. Estelle, 463 U.S. 880 (1983), a
S 2254 case in which the Court used the expression

11
"substantial showing of the denial of a federal right." 463
U.S. at 893 (emphasis added). The denial of a federal right
encompasses not only rights assured by the United States
Constitution but also those based on federal statutes,
including the Sentencing Guidelines.

Cepero advances two basic arguments, either of which he
claims requires us to reject the plain language of
"constitutional right" and hold that Congress intended the
phrase to mean "federal right"--first, that the amended
version of S 2253(c) does not mean what it says, because
Congress in the AEDPA intended to codify the Court's
holding in Barefoot, which used the expression "federal
right," but mistakenly amended the statute to apply to only
those issues implicating the denial of a "constitutional
right"; second, that in Peguero v. United States, 526 U.S. 23
(1999), the Court considered the merits of a S 2255 appeal
that did not implicate a constitutional right.

A.

We are satisfied that the Court has recently made clear
that the use of the phrase "constitutional right" must be
given effect. "Our task is to interpret the statute as best we
can, not to second-guess the wisdom of the congressional
policy choice . . . . Congress chose the language that
requires us to decide as we do, and Congress is free to
change it." Mansell v. Mansell, 490 U.S. 581, 594 (1989)
(citation omitted). In Slack v. McDaniel, ___ U.S. ___, 120 S.
Ct. 1595 (2000), the Court held:

When the district court denies a habeas petition on
procedural grounds without reaching the prisoner's
underlying constitutional claim, a COA [certificate of
appealability] should issue when the prisoner shows, at
least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct
in its procedural ruling.

Slack, 120 S. Ct. at 1604 (emphasis added). In so holding,
the Court construed S 2253(c) as follows:

12
 Under AEDPA, a COA may not issue unless "the
applicant has made a substantial showing of the denial
of a constitutional right." 28 U.S.C. S 2253(c). Except
for substituting the word "constitutional" for the word
"federal," S 2253 is a codification of the CPC [certificate
of probable cause] standard announced in Barefoot v.
Estelle. Congress had before it the meaning Barefoot
had given to the words it selected; and we give the
language found in S 2253(c) the meaning ascribed it in
Barefoot, with due note for the substitution of the word
"constitutional."

Slack, 120 S. Ct. at 1603 (emphasis added and citations
omitted).

Prior to the Court's opinion in Slack, the Court of Appeals
for the Tenth Circuit offered a similar analysis of the post-
AEDPA version of S 2253(c):

By requiring an applicant for a certificate of probable
cause to make a "substantial showing of the denial of
a federal right," the Supreme Court in Barefoot ensured
that appellate review of the federal habeas process
should be limited to petitions that make a colorable
showing of constitutional error. Although the Court
used the word "federal," an applicant seeking a
certificate of probable cause to appeal a district court's
denial of a S 2254 petition for a writ of habeas corpus
must demonstrate a substantial showing of
constitutional error underlying the state conviction. We
have always read the Barefoot standard to require a
habeas petitioner to make a substantial showing of the
denial of a federal constitutional right. Indeed, in the
context of federal habeas review of a conviction entered
in state court, it is the only intelligible reading.

Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996)
(citations omitted), overruled on other grounds by United
States v. Kunzman, 125 F.3d 1363 (10th Cir. 1997).

Because Congress' meaning of "constitutional" in
S 2253(c)(2), as amended, is crucial to our analysis of our
jurisdiction, it is helpful to examine the legislative history.
The first legislative report on this bill, House Bill 665, was
introduced by the House Judiciary Committee on February

13
2, 1995. At that time the bill contained no language
amending the review provisions of S 2253. The second
legislative report on the bill was filed four days later, on
February 6, and again did not purport to amend S 2253. On
February 8, 1995, the House Judiciary Committee
introduced House Report 104-23, which accompanied
House Bill 728. The House Report on this bill contained the
following language:

Section 2253 of title 28, United States Code, is
amended to read as follows:

. . . .

(c) . . . . A certificate of probable cause may only issue
if the petitioner has made a substantial showing of the
denial of a Federal right. . . .

Sec. 102, H.R. Report No. 104-23 (1995) (emphasis added).
This Report included also a section entitled "Background
and Need for the Legislation," which provided:

The bill also strengthens the certificate of probable
cause requirement by providing (in proposed S 2253(c))
that a certificate may issue only on a substantial
showing of the denial of a federal right. The bill thus
enacts the standard of Barefoot v. Estelle, 463 U.S. 880
(1983). . . .

H.R. Report No. 104-23 ("Background and Need for the
Legislation"). In March 1995, the Senate and House of
Representatives considered various versions of the bill, and
on December 5 and 6 the House and Senate Judiciary
Committees respectively issued their final reports on the
proposed legislation, neither of which contained language
amending S 2253.

On April 15, 1996, House Conference Report No. 104-
518, accompanied by S. 735, was passed. Both the
Conference Report and the accompanying bill contained
language amending S 2253(c). The new bill substituted
"certificates of appealability" for certificates of probable
cause, and limited issuance of these certificates to
situations where petitioners have made a "substantial
showing of a denial of a constitutional right." (emphasis
added). Neither the Conference Report nor the

14
accompanying bill explained why the language ofS 2253(c)
referred to "constitutional" and not "federal" rights.
Congress passed this version of the bill, known as the
Antiterrorism and Effective Death Penalty Act (AEDPA),
Pub. L. No. 104-132, 110 Stat. 1214 (1996), which the
President signed into law on April 24, 1996.

B.

Notwithstanding AEDPA's limited legislative history on
this point, it is clear that Congress by amendingS 2253
intended to codify in part the Court's holding in Barefoot v.
Estelle, 463 U.S. 880 (1983); see H.R. Report No. 104-23
("Background and Need for the Legislation"). In Barefoot,
the Court granted certiorari to determine whether the Court
of Appeals for the Fifth Circuit erred in refusing to stay a
state petitioner's death sentence under a S 2254
proceeding. Id. at 888. Reviewing the procedural actions of
the court of appeals, the Court outlined the grounds for
appealing the denial of a S 2254 petition:

First. Congress established the requirement that a
prisoner obtain a certificate of probable cause to appeal
in order to prevent frivolous appeals from delaying the
States' ability to impose sentences, including death
sentences. The primary means of separating
meritorious from frivolous appeals should be the
decision to grant or withhold a certificate of probable
cause. . . . We agree with the weight of opinion in the
Courts of Appeals that a certificate of probable cause
requires petitioner to make a "substantial showing of
the denial of [a] federal right." Stewart v. Beto, 454
F.2d 268, 270, n.2 (5th Cir. 1971), cert. denied , 406
U.S. 925 (1972).

Barefoot, 463 U.S. at 893 (alteration in original) (footnote
omitted) (citing Ramsey v. Hand, 309 F.2d 947, 948 (10th
Cir. 1962); and Goode v. Wainright, 670 F.2d 941 (11th Cir.
1982)).

There is no doubt that the current version of S 2253(c)(2)
codified the Court's holding in Barefoot that a petitioner
must make a "substantial showing." Congress, however,
made a significant change to the Barefoot standard,

15
"substituting the word `constitutional' for the word
`federal.' " Slack, 120 S. Ct. at 1603. The term
"constitutional right" means something very different from
the term "federal right," and because we must assume that
Congress "means in a statute what it says," Connecticut
Nat'l Bank v. Germain, 503 U.S. 249, 254 (1992), we give
effect to the change.

It must be emphasized that it makes no difference
whether "the final order in a habeas corpus proceeding in
which the detention complained of arises out of process
issued by a State court" described in S 2253(c)(1)(A)
emanates from a proceeding brought under S 2254 or
S 2241(c)(3) (a prisoner in custody "in violation of the
Constitution or laws or treaties of the United States").
Under either proceeding, a state prisoner must obtain a
certificate of appealability--that is, "make a substantial
showing of the denial of a constitutional right" under
S 2253(c)(2)--before appealing from any aspect of the state-
ordered detention under S 2253(c)(1)(A). See Montez v.
McKinna, 208 F.3d 862, 869 (10th Cir. 2000) ("[T]his court
reads S 2253(c)(1)(A) as applying whenever a state prisoner
habeas petition relates to matters flowing from a state court
detention order[, including challenges underS 2254 and
S 2241.]"). Federal prisoner appeals fromS 2241
proceedings, however, are not governed by 2253's certificate
of appealability requirement. See 28 U.S.C.S 2253(c)(1)(B)
(applying the certificate of appealability requirement to
federal prisoner appeals from "the final order in a
proceeding under section 2255"); see also Sugarman v.
Pitzer, 170 F.3d 1145, 1146 (D.C. Cir. 1999) ("We hold that
a COA is not required for federal prisoner S 2241 appeals.");
Ojo v. INS, 106 F.3d 680, 681 (5th Cir. 1997). 4

This is not to suggest that Congress' amendment of
S 2253(c)(2) was without problems. We confront the specter
that Congress has now differentiated between the type of
_________________________________________________________________

4. It bears emphasis that S 2241 is not involved in this case because
Appellant brought this action as a "Motion under 28 U.S.C. S 2255 to
Vacate, Set Aside or Correct Sentence by a person in Federal Custody."
App. at 65a. He did not argue otherwise in the district court or in his
briefs to this court. See Appellant's Br. at iv, Table of Authorities.

16
S 2255 petition that may be filed in district court and the
type that may be appealed to this court. Cf. United States
v. Gordon, 172 F.3d 753, 754 (10th Cir. 1999); Young, 124
F.3d at 799. Section 2255 petitioners may allege and have
adjudicated non-constitutional issues in district court:

A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be
released upon the ground that the sentence was
imposed in violation of the Constitution or laws of the
United States, or that the court was without
jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate,
set aside or correct the sentence. . .

28 U.S.C. S 2255 (emphasis added); see Gordon, 172 F.3d
at 754. However, the courts of appeals under the post-
AEDPA version of S 2253(c)(2) have limited jurisdiction over
unsuccessful S 2255 petitions. Hohn, 524 U.S. at 240; see
Young, 124 F.3d at 799 ("If the district court denies a
[S 2255] petition based on a statutory issue, S 2253(c)(2)
precludes an appeal."). To the ad terrorem argument that
the defendant is thereby totally denied the opportunity to
appeal nonconstitutional issues, the short answer is that
Congress has indicated that these issues must be
presented in the direct appeal from the conviction.

C.

We now address the argument that the Court sub silentio
has already interpreted S 2253(c)(1)-(3) and has held that
the phrase "denial of a constitutional right" may be
interpreted to embrace non-constitutional issues such as
interpretation of the Federal Rules of Criminal Procedure.
See Peguero v. United States, 526 U.S. 23 (1999).

Although there is no discussion or reference made in the
Peguero opinion that contemplates the precise issue
presented here, Appellant here argues that the issue of
jurisdiction under S 2253(c) was before the Peguero Court
because the Government indirectly raised the issue in a
footnote in its brief, when it stated:

17
 The government acquiesced in the granting of a
certificate of appealability. [ ] In fact, however, the
district court erred in issuing a certificate. A certificate
of appealability may be issued "only if the applicant
has made a substantial showing of the denial of a
constitutional right," 28 U.S.C. (c)(2) (Suppl. II 1996),
and the Rule 32 error on which the petitioner sought
the certificate is not of constitutional dimension.

Brief for Respondent at *6 n.5, Peguero, 1998 WL 848085.

There are two answers to this contention. First, the
footnote clearly states that the "government acquiesced in
the granting of the certificate." Having acquiesced in the
granting of the certificate in the court below, it may not be
contended that the Government was raising a serious
jurisdictional argument before the Supreme Court. Second,
and much more fundamental, the Court consistently
teaches that an opinion that does not refer to or
substantially treat the jurisdictional argument does not
have the strong bite of binding precedent. See e.g.,
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
119 (1984).

We are of the view that the teachings of Peguero do not
address the precise issues presented in this case. There the
Court did not have before it the issue of whether a
certificate of appealability could issue for other than a claim
of constitutional right. Specifically, the first sentence of the
Court's opinion stated the question for decision:

We granted certiorari to resolve a Circuit conflict over
whether a district court's failure to advise a defendant
of his right to appeal as required by the Federal Rules
of Criminal Procedure provides a basis for collateral
relief even when the defendant was aware of his right
to appeal when the trial court omitted to give the
advice.

Peguero, 526 U.S. at 963. That was the only issue before
the court and the teachings of that case must be limited to
the precise issue decided. "[W]hen questions of jurisdiction
have been passed on in prior decisions sub silentio, this
Court has never considered itself bound when a
subsequent case finally brings the jurisdictional issue

18
before us." Pennhurst, 465 U.S. at 119 (quoting Hagans v.
Lavine, 415 U.S. 528, 533 n.5 (1974)); see United States v.
More, 7 U.S. 159, 172 (1805) ("No question was made, in
that case, as to the jurisdiction. It passed sub silentio, and
the court does not consider itself as bound by that case.")
(Marshall, C.J.).

In Edelman v. Jordan, 415 U.S. 651 (1974), the Court
referred to a series of cases in which it reached the merits
of challenges to federal welfare regulations brought by
welfare recipients. In meeting for the first time whether the
Eleventh Amendment precluded federal court jurisdiction to
grant retroactive relief, the Court noted that it had
previously decided the cases on the merits without meeting
the question of jurisdiction. It referred also to Shapiro v.
Thompson, 394 U.S. 618 (1969), where "the Eleventh
Amendment objection to such retroactive relief was actually
presented to this Court in a case which was orally argued."
Edelman, 415 U.S. at 670. Significantly, the Court
explained why Shapiro and three other cases decided by the
Court on the merits could not be interpreted as sub silentio
deciding the issue of jurisdiction:

This Court, while affirming the judgment [in Shapiro],
did not in its opinion refer to or substantially treat the
Eleventh Amendment argument. Nor, of course, did the
summary dispositions of the three District Court cases
contain any substantive discussion of this or any other
issues raised by the parties.

This case, therefore, is the first opportunity the
Court has taken to fully explore and treat the Eleventh
Amendment aspects of such relief in a written opinion.
. . . Having now had the opportunity to more fully
consider the Eleventh Amendment holdings of those
cases after briefing and argument, we disapprove the
Eleventh Amendment holdings of those cases to the
extent that they are inconsistent with our holding
today.

Id. at 670-671.

The Court had a similar issue before it in Hagans v.
Lavine, and noted:

19
 In none of these cases was the jurisdiction issue
squarely raised as a contention in the petitions for
certiorari, jurisdictional statements, or briefsfiled in
this Court. Moreover, when questions of jurisdiction
have been passed on in prior decisions sub silentio,
this Court has never considered itself bound when a
subsequent case finally brings the jurisdictional issue
before us. . . . We therefore approach the question of
the District Court's jurisdiction to entertain this suit as
an open one calling for a canvass of relevant
jurisdictional considerations.

Hagans, 415 U.S. at 535 n.5 (citations omitted).

Applying the foregoing teachings to the issue at bar, we
see that a year after the Peguero decision, in Slack v.
McDaniel, speaking through Justice Kennedy, the same
justice who authored the opinion in Peguero, the Court met
the precise issue presented here:

Where a district court has rejected the constitutional
claims on the merits, the showing required to satisfy
S 2253(c) is straightforward: The petitioner must
demonstrate that reasonable jurists would find that the
district court's assessment of the constitutional claims
debatable or wrong . . . . This construction gives
meaning to Congress' requirement that a prisoner
demonstrate substantial underlying constitutional
claims . . . .

120 S. Ct. at 1604.

What the Supreme Court did not say in the 1999 Peguero
case cannot trump what the court explicitly said in Slack a
year later, especially when both opinions were authored by
the same justice. Accordingly, we reject the argument that
the Court's decision in Peguero runs counter to the holding
we reach today--that a certificate of appealability in a case
brought under S 2253(c)(2) may issue, in the literal
language of the statute, "only if the applicant has made a
substantial showing of the denial of a constitutional right."

VI.

In determining whether the certificate of appealability
was proper and thus whether we have jurisdiction to review

20
this petition, we examine whether Cepero had made (1) a
substantial showing of a deprivation of (2) a constitutional
right, so as to invoke our S 2253(c) jurisdiction. Petitioner
alleges the District Court erred by enhancing his sentence,
because the Government failed at sentencing to show
beyond a preponderance of the evidence that he conspired
to sell crack cocaine, and not some other form of cocaine
base. His contention of error thus is misapplication of the
Sentencing Guidelines, and he relies on our decision in
United States v. James, 78 F.3d 851 (3d Cir. 1996) to
support his claim.

Section 2D1.1 of the Sentencing Guidelines provides a
much greater sentence for drug offenses involving crack
cocaine (100 to 1, based on drug amount) than for offenses
involving powder cocaine or some other form of cocaine
base. In James, we held that the Government was required
to prove at sentencing that the defendant distributed crack
cocaine, not just cocaine base, before S 2D1.1 of the
Sentencing Guidelines could be used to impose the
increased sentence. 78 F.3d at 856. However, the facts and
procedural posture in James are materially different than
those in Cepero's S 2255 petition. The petitioner in James
pursued review of his sentence on direct appeal. In
contrast, Cepero sought post-conviction review of his
sentence via a S 2255 petition. Section 2255 petitions are
not substitutes for direct appeals and serve only to protect
a defendant from a violation of the constitution or from a
statutory defect so fundamental that a complete
miscarriage of justice has occurred. Reed v. Farley, 512
U.S. 339, 348 (1994); Young, 124 F.3d at 796. Under
S 2253(c)(2), we have appellate jurisdiction over only those
issues substantially shown to deny a petitioner a
constitutional right. We find no such deprivation here.

Cepero's allegation here, that the sentencing court
misapplied the Sentencing Guidelines in his case, is a
question that does not present a constitutional issue under
S 2253(c).5 See Buggs v. United States, 153 F.3d 439, 443
_________________________________________________________________

5. Because application of the Sentencing Guidelines in this case does not
implicate a fact that would increase the penalty of a crime beyond the
statutory maximum, the teachings of Apprendi v. New Jersey, ___ U.S.
__, 2000 WL 807189 (June 26, 2000), are not relevant here.

21
(7th Cir. 1998) ("[E]rrors in the implementation of the
Sentencing Guidelines are generally not cognizable in a
collateral attack."). Because of the specific misapplication of
the Sentencing Guidelines that Appellant alleges in this case,6
we conclude that he has not "made a substantial showing
of the denial of a constitutional right," and thus the District
Court erred under S 2253(c)(2) by issuing a certificate of
appealability. Accordingly, we do not have jurisdiction to
review the merits of Appellant's case.

* * *

We will grant the Government's motion to dismiss the
appeal for lack of subject-matter jurisdiction.
_________________________________________________________________

6. We do not suggest that a misapplication of the Guidelines can never
rise to the level of a constitutional deprivation.

22
RENDELL, Circuit Judge, concurring in part and dissenting
in part:

Today we decide that the issuance of a certificate of
appealability by a District Court is not sufficient to permit
our review of the merits, but, rather, that we are obliged to
consider whether the appellant was entitled to a certificate
of appealability based on our view that we only have
subject matter jurisdiction to hear an appeal if the
certificate of appealability was properly issued. We reach
this conclusion without reference either to the statutory
language or to Congress's intent, the two factors which
have traditionally been the hallmarks of our jurisprudence
when interpreting whether prerequisites for suit or appeal
are subject matter jurisdictional in nature. See , e.g., Zipes
v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)
(concluding that "[t]he structure of Title VII, the
congressional policy underlying it, and the reasoning of our
cases all lead to" the conclusion that "filing a timely charge
of discrimination with the EEOC is not a jurisdictional
prerequisite to suit in federal court"); Shendock v. Director,
893 F.2d 1458, 1462 (3d Cir. 1990) (en banc) (finding the
60 day filing requirement contained in 33 U.S.C.S 921(c)
for appeals of the decisions of the Benefits Review Board to
be jurisdictional, in part because the statute uses that
term) ("We also recognize that a priori attachment of the
label `jurisdiction' to a statute's filing requirements without
examination of its language and structure, as well as the
congressional policy underlying it, would be an abdication
of our duty to interpret the language of a statute in
accordance with Congress's intent in passing it."). In so
doing, we also reject the considered treatment of this issue
by our fellow courts of appeals, which have found an
improvidently granted certificate sufficient to permit
appellate review, because we find their reasoning contrary
to language contained in Hohn v. United States , 524 U.S.
236 (1998). See Soto v. United States, 185 F.3d 48, 52 (2d
Cir. 1999) (finding that even the improvident issuance of a
certificate of appealability confers appellate jurisdiction);
United States v. Talk, 158 F.3d 1064, 1068 (10th Cir. 1998)
(finding that "an erroneously-issued certificate does not
deprive [the court] of jurisdiction to hear a certified
appeal"); Young v. United States, 124 F.3d 794, 799 (7th

23
Cir. 1997). However, as I discuss below, the Supreme Court
in Hohn addressed an issue quite different from the one
before us. Therefore, I dissent from this portion of the
majority's opinion. Given the majority's view on this issue,
however, I concur in the next step it takes, namely its
determination that the test for the issuance of a certificate
of appealability requires that the petitioner make a
substantial showing of the denial of a constitutional, rather
than a federal, right.

I submit that neither the statutory language ofS 2253(c)
nor the habeas statute in its entirety can support the
conclusion the majority reaches on the threshold issue.
Section 2253(c)(1) simply states that: "Unless a circuit
justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from -- . . .
(B) the final order in a proceeding under section 2255." 28
U.S.C. S 2253(c)(1) & (c)(1)(B) (emphasis added). Section
2253(c)(2) explains: "A certificate of appealability may issue
under paragraph (1) only if the applicant has made a
substantial showing of the denial of a constitutional right."
Id. S 2253(c)(2) (emphasis added). Therefore, in line with the
plain language, Cepero is entitled to a review of his case
because a certificate of appealability was issued. Nothing in
the statutory language suggests, let alone requires,
otherwise. Certainly, no portion of the language suggests
that satisfaction of the underlying certificate of
appealability standard is the trigger to our jurisdiction.
Rather, by stating that an appeal may not be taken unless
a certificate of appealability is issued, the statute explains
that it is simply the issuance of the certificate which
provides the ticket to appellate review. Congress's limitation
of the grounds for issuance should not render the
certificate a nullity if improperly issued, absent a statement
to that effect.

This reading is buttressed by the fact that S 2253(c)(2)
also requires that there be a "substantial showing" of a
denial of a constitutional right. If satisfaction of the one
term is required for jurisdiction, surely satisfaction of the
other, nestled right next to the first, is required as well. If
the majority's reading is correct, it would appear that a
court of appeals has a duty, under Steel Company v.

24
Citizens for a Better Environment, 523 U.S. 83, 94 (1998), to
determine the "substantiality" of the showing of the
deprivation in order to determine whether or not it has
jurisdiction. "Substantiality" is not a quality that yields itself
easily to analysis, to say the least, and it would be an odd
statute which turned the existence of judicial power to hear
an appeal on whether or not such an elusive quality were
deemed existent. The easier reading, I submit, is that an
issuing court should attempt to meet this standard, but if
it missteps, it does not deprive the appeals court of power
to review.

Furthermore, if S 2253(c)(2) is jurisdictional, why not
(c)(3)? Subsection (c)(3), like (c)(2), lays out mandatory
requirements for the issuing court to follow. The certificate
of appealability must "indicate which specific issue or
issues satisfy the showing required by paragraph (2)." But
what if the certificate of appealability is wanting in this
regard? In such a situation, remand for clarification might
be appropriate, but it would be odd indeed if a court of
appeals were required to dismiss an appeal underS 2253
for want of jurisdiction because the certificate of
appealability did not "indicate which specific issues satisfy
the showing." Yet this is the logical extension of the
majority's interpretation.

It should be noted that two other provisions ofS 2253
describe and proscribe our jurisdiction, demonstrating that
Congress knew how to limit appellate jurisdiction if it
wanted to do so. Following the general grant of jurisdiction
over habeas appeals in S 2253(a) (providing that "the final
order shall be subject to review"), S 2253(b) then limits that
jurisdiction in a particular case, and does so in clear
language: "There shall be no right of appeal from a final
order in a proceeding to test the validity of a warrant to
remove to another district or place for commitment or trial
a person charged with a criminal offense against the United
States, or to test the validity of such person's detention
pending removal proceedings." 28 U.S.C. S 2253(b)
(emphasis added); see also Roba v. United States , 604 F.2d
215, 218 (2d Cir. 1979) (interpreting this language also
contained in the previous version of S 2253 to be a
limitation of appellate jurisdiction). I believe that there is a

25
clear difference between the language that there is"no right
of appeal," and a provision that the issuance of a certificate
of appealability is a condition to the taking of an appeal.

The lack of support for the conclusion that only the
proper issuance of a certificate of appealability confers
subject matter jurisdiction is particularly significant
because, as the majority reasons and explains, Congress
developed the certificate of appealability requirements from
the preexisting certificate of probable cause mechanism. In
a series of Supreme Court opinions addressing the contours
of appellate review of the denial of habeas relief in S 2254
proceedings, the Supreme Court repeatedly explained that
once a district court has granted a certificate of probable
cause, the court of appeals must address the merits of the
petitioner's appeal. See Nowakowski v. Maroney , 386 U.S.
542, 543 (1967) ("But when a district judge grants such a
certificate, the court of appeals must grant an appeal in
forma pauperis (assuming the requisite showing of poverty),
and proceed to a disposition of the appeal in accord with its
ordinary procedure."); see also Garrison v. Patterson, 391
U.S. 464, 466 (1968) (following Nowakowski); Carafas v.
LaVallee, 391 U.S. 234, 242 (1968) (following Nowakowski).

The Supreme Court most recently explained the impact of
the issuance of a certificate of probable cause in Barefoot v.
Estelle, 463 U.S. 880, 893 (1983), which, of course, forms
the basis for much of the debate over the meaning of the
standard for the issuance of a certificate of appealability
contained in the majority's opinion. In Barefoot , however,
the Court also explained that: "When a certificate of
probable cause is issued by the district court, as it was in
this case, or later by the court of appeals, petitioner must
then be afforded an opportunity to address the merits, and
the court of appeals is obligated to decide the merits of the
appeal." Id. at 893 (emphasis added). Previously, in
Carafas, the Court explained that review on the merits was
necessary because "[a]nything less than this, as we held in
Nowakowski, would negate the office of the certificate of
probable cause." Carafas, 391 U.S. at 242. The Supreme
Court noted that this did not, however, prevent an appellate
court from affirming the district court's decision on the
merits in a summary, abbreviated fashion upon afinding

26
that the claim was frivolous or otherwise foreclosed. See
Barefoot, 463 U.S. at 894.

In imposing the certificate of appealability requirement on
habeas petitions in both state and federal cases, Congress
specifically addressed two parts of the old certificate of
probable cause mechanism. As we decide in this case,
Congress strengthened the standard for the issuance of a
certificate announced in Barefoot. Congress also addressed
the question of whether a court may issue a certificate
limited to particular issues, see 28 U.S.C.S 2253(c)(3), a
question that was unclear during the certificate of probable
cause era, see Sherman v. Scott, 62 F.3d 136, 138-39 (5th
Cir. 1995) (describing a circuit split over whether a "limited"
certificate of probable cause binds the reviewing court to
consideration of those issues alone). Given that Congress
clearly addressed those issues, and given the clear
discussion of the impact of a certificate of probable cause
in Barefoot, I submit that if Congress had intended to make
the propriety of the issuance of a certificate of appealability
jurisdictional in the manner conceived of by the majority, or
had desired more generally that we review the decision to
issue a certificate,1 Congress would have phrased the
statute in manner that makes clear this additional change
from prior practice.
_________________________________________________________________

1. The majority does not address whether the order issuing a certificate
of appealability might be reviewable even if we did not decide that its
proper issuance is jurisdictional. However, I can locate no rule or
statute
that would constitute a grant of appellate jurisdiction to review the
order
issuing a certificate of appealability (assuming that it cannot be deemed
a final order of the district court). Federal Rule of Appellate Procedure
22, which describes how a petitioner may apply to this court for a
certificate of appealability, makes no reference to the government's
contesting a certificate once granted. See Fed. R. App. P. 22(b).

The Court of Appeals for the Seventh Circuit recently indicated that it
had "discretion to decide the case by reviewing the validity of the CA or
by going straight to the issues raised on appeal." United States v.
Marcello, 212 F.3d 1005, 1007-08 (7th Cir. 2000). But see Lucidore v.
New York State Division of Parole, 209 F.3d 107, 112 (2d Cir. 2000)
(finding the state's objection to the certificate of appealability
foreclosed
by Soto, 185 F.3d at 52). However, the Court in Marcello cites no
authority for such review power.

27
Although the majority relies upon Hohn to reach its
conclusion, I see nothing in Hohn, or for that matter,
Peguero v. United States, 526 U.S. 23 (1999), or Slack v.
McDaniel, ___ U.S. ___, 120 S. Ct. 1595 (2000), that
undermines my conclusion. In Hohn, the Supreme Court
simply concluded that the application for, and denial of, a
certificate of appealability constituted a "case in the court
of appeals" such that the Supreme Court had statutory
jurisdiction to review the denial under S 1254(1). See Hohn,
524 U.S. at 241, 251 (overruling House v. Mayo , 324 U.S.
42, 44 (1945) (per curiam), which found that the
application for, and subsequent denial of, a certificate of
probable cause was not a "case in the court of appeals").
The Court's holding that the denial of a certificate of
appealability may be reviewed because a "case" exists in the
court of appeals for purposes of S 1254(1) tells us nothing
about the role of a certificate of appealability; the Supreme
Court has statutory jurisdiction to review all types of cases
of which questions of jurisdiction make up but a small
part. Furthermore, I fail to grasp the significance the
majority attributes to the Supreme Court's determination in
Hohn that decisions regarding the grant or denial of a
certificate of appealability in the court of appeals are not
administrative in nature. See ante at 9-11; see also Hohn,
524 U.S. at 245-46. The majority's analysis both
presupposes that anything which is not "administrative" is
jurisdictional, a conclusion that I think is clearly wrong,
and posits that Hohn disproves the reasoning of those
courts of appeals that have concluded that an appellate
court need not examine the grounds for the issuance of a
certificate of appealability. See Soto, 185 F.3d at 52; Talk,
158 F.3d at 1068; Young, 124 F.3d at 799; see also Gatlin
v. Madding, 189 F.3d 882, 886-87 (9th Cir. 1999). I
disagree. I see the reasoning of those courts, dictated by
their views of the role of a certificate of appealability, to be
sound. In Young, Judge Easterbrook focused upon the
purpose of the certificate of appealability:

The absence of a certificate of appealability precludes
an appeal; should an erroneously issued certificate be
treated the same as the lack of a certificate? We think
not. The certificate is a screening device, helping to
conserve judicial (and prosecutorial) resources. The

28
 obligation to identify a specific issue concentrates the
parties' attention (and screens out weak issues); the
limitation to constitutional claims also reduces the
number of appeals while simultaneously removing a
category of claim that under Davis [v. United States,
417 U.S. 333 (1974)], and Reed [v. Farley, 512 U.S.
339 (1994)] has poor prospects. Once a certificate has
issued, however, the case proceeds to briefing and
decision; the resources have been invested. It is too
late to narrow the issues or screen out weak claims.
Perhaps a motion to dismiss an appeal on the ground
that a certificate was improperly issued would serve
some function. But once the briefs have been written
and the case heard, there is little point in scrutinizing
the certificate of appealability. An obligation to
determine whether a certificate should have been
issued, even if the parties do not present this issue for
decision -- a step entailed by the conclusion that a
proper certificate is a jurisdictional requirement--
would increase the complexity of appeals in collateral
attacks and the judicial effort required to resolve them,
the opposite of the legislative plan.

Young, 124 F.3d at 799 (emphasis added).

The strongest support for the majority's reliance on Hohn
comes from the Supreme Court's various characterizations
of the role of the certificate of appealability as
"jurisdictional." However, I am unwilling to place
significance on random statements that have no bearing on
the actual issue raised in the case, let alone its holding. I
also note that in Slack, decided after Hohn, the Supreme
Court characterized the certificate of appealability in a way
that would suggest it is not jurisdictional in the manner the
majority concludes. See Slack, 120 S. Ct. at 1603 ("The
[certificate of appealability] statute establishes procedural
rules and requires a threshold inquiry into whether the
circuit court may entertain an appeal."). Further, in
Peguero, the Supreme Court addressed a federal question
on the merits without reviewing either the propriety of the
initial grant of a certificate or the Court's own appellate
jurisdiction to hear the case. While I agree with the majority
that Peguero does not compel a conclusion as to the

29
meaning of S 2253(c)(2), see ante at 17-19, I, nonetheless,
think that drawing some meaning from the Court's silence
in Peguero is no worse than finding meaning regarding the
issue before us in the Court's opinion in Hohn .

Numerous efforts have been made over the years to
streamline the process by which the federal courts are to
sift out those habeas petitions which are unworthy of the
expenditure of additional judicial resources, and Congress
considered numerous options before passing AEDPA. See
Hunter v. United States, 101 F.3d 1565, 1578-83 (11th Cir.
1996) (tracing and discussing the numerous proposed
reform bills eventually leading to the enactment of AEDPA);
Judge Henry J. Friendly, Is Innocence Irrelevant?: Collateral
Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142
(1970) (suggesting that district courts should not be
permitted to grant certificates of probable cause and
suggesting that the certificate of probable cause
requirement be extended to petitions from federal custody).
Given the concerns expressed by Congress regarding the
efficiency of the process, I cannot help but agree with the
other circuit courts of appeals that have counseled against
an interpretation of the statute that would require us to
engage in a threshold examination of the decision of the
district court to issue a certificate of appealability. See, e.g.,
Young, 124 F.3d at 799. While it could be argued that a
threshold review of the issuance of the certificate of
appealability in cases like this, where the error claimed is
not constitutional, may promote efficiency, I note that after
our decision in this case clarifies the meaning of
S 2253(c)(2), district courts most likely will not grant
certificates of appealability when a constitutional right is
not implicated.

While a desire for efficiency should not dictate that we
shirk our duty to examine our jurisdiction, if such a duty
is clearly imposed by the statute, knowledge that concerns
about efficiency were at the heart of Congress's decision to
modify the certificate requirements should inform our
interpretation of what the statute does in fact require. I
would hold the modification of the Barefoot standard was
meant to restrict the issuance of a certificate of
appealability, but that once issued, such issuance should
lead to merits review.

30
Chief Judge BECKER and Judge SLOVITER join in this
concurring and dissenting opinion.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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