PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 97-2319
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D. C. Docket No. 95-250-Civ-J-10
JOHN GARY HARDWICK,
Petitioner-Appellant,
versus
HARRY K. SINGLETARY, JR., Secretary, Florida Department
of Corrections,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
______________________________
(October 24, 1997)
Before ANDERSON and BIRCH1, Circuit Judges.
1
In response to the petition for rehearing en banc filed by
the government in this case, Judge Rosemary Barkett recused herself
from further consideration of this matter by order dated October
16, 1997. According to the practice of our court under such
circumstances, the case is decided by a quorum. See 28 U.S.C. §
46(d).
ON SUGGESTION OF REHEARING EN BANC
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
2
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.”).
3
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 AEDPA 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.2
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 appealability, 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.
2
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.
4