United States Court of Appeals,
Eleventh Circuit.
No. 97-2319.
John Gary HARDWICK, Jr., Petitioner-Appellant,
v.
Harry K. SINGLETARY, Jr., Secretary, Florida Department of Corrections, Respondent-
Appellee.
Sept. 4, 1997.
Appeal from the United States District Court for the Middle District of Florida. (No. 95-250-CIV-J-
10), William Terrell Hodges, Judge.
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Petitioner John Gary Hardwick moves for remand and relinquishment of jurisdiction or, in
the alternative, a certificate of probable cause to appeal the district court's denial of habeas corpus
relief. The petition initially was filed in federal district court pursuant to 28 U.S.C. § 2254 on March
20, 1995. The district court denied the petition on February 24, 1997 and, applying the relevant
provision of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub.L. No. 104-
132, 120 Stat. 1214 (1996), now codified at 28 U.S.C. § 2253(c) (Supp.1997),1 issued a certificate
of appealability as to three of Hardwick's twenty claims for relief. Hardwick moves for remand on
the ground that the district court erroneously analyzed his application to appeal under the AEDPA.
Hardwick argues that the district court should have applied pre-AEDPA law regarding the issuance
of a certificate of probable cause. In support of this argument, he avers that our recent en banc
decision in Hunter v. United States, 101 F.3d 1565 (11th Cir.1996), cert. denied, --- U.S. ----, 117
S.Ct. 1695, 137 L.Ed.2d 822 (1997), has been overruled in part by the Supreme Court's decision in
Lindh v. Murphy, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).
To the extent that our decision in Hunter stands for the proposition that the AEDPA
provisions governing certificates of appealability apply to § 2254 cases pending on the date of the
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The AEDPA became effective on April 24, 1996.
AEDPA's enactment, we agree that the Supreme Court's pronouncement in Lindh effectively
abrogates and supplants that portion of Hunter. Lindh states that "the new provisions of chapter 153
generally apply only to cases filed after the Act became effective." Id. at ----, 117 S.Ct. at 2068.
Moreover, in reversing the Seventh Circuit's decision in Lindh v. Murphy, 96 F.3d 856 (7th
Cir.1996), the Court expressly noted our reliance in Hunter on the reasoning and analysis underlying
the Seventh Circuit's holding. See Lindh, --- U.S. at ----, 117 S.Ct. at 2061. We therefore hold,
consistent with the clear directive of the Supreme Court in Lindh, that the AEDPA does not apply
to habeas petitions that were pending at the time the new law took effect. To the extent that our
decision in Hunter is inconsistent with the foregoing statement, it no longer represents the law of
this circuit. See United States v. Brown, 117 F.3d 471, 479 n. 7 (11th Cir.1997) (interpreting Lindh
to hold that the "provisions of Antiterrorism and Effective Death Penalty Act of 1996 do not apply
to cases in which petitions or motions were filed prior to its effective date"); accord Martin v.
Bissonette, 118 F.3d 871, 875 (1st Cir.1997) ("Because [petitioner's] case was still pending before
us on a petition for rehearing when Lindh was decided, we withdrew our earlier opinion and now
reevaluate [petitioner's] claims under the pre-AEDPA standard."); Green v. Johnson, 116 F.3d 1115,
1119 (5th Cir.1997) ("Although we have held previously that the standards of review set forth in the
AEDPA apply to all habeas petitions that were pending on April 24, 1996, the date on which the
President signed the bill into law, we now must conclude otherwise in light of Lindh v. Murphy.")
(citations omitted). But see Tiedeman v. Benson, --- F.3d ----, ---- (8th Cir.1997) (limiting
application of Lindh to particular substantive provision of AEDPA and holding that when the "notice
of appeal ... together with [the] application for a certificate of appealability, was filed after the
enactment of AEDPA.... [then] AEDPA does apply to the certificate-of-appealability issues").
Because Hardwick's petition for habeas corpus was pending on April 24, 1996, the district
court erred in applying the AEDPA to Hardwick's application. Accordingly, Hardwick's motion for
remand and relinquishment of jurisdiction is GRANTED. We VACATE the court's order granting
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in part and denying in part a certificate of appealability, and REMAND for a reevaluation of
Hardwick's application for a certificate of probable cause in light of pre-AEDPA law.
3