(concurring and dissenting):
For the reasons stated in my concurring opinion on the decision of this appeal, I dissent from the conclusion of the Court that there is no compelling reason to broaden the scope of review beyond the issue specified by the panel that issued the certificate of probable cause.
With respect to the remainder of the decision, which authorizes the limitation of issues certified for appeal, but allows the panel, that hears the appeal to broaden the scope if persuaded that such would be just, I concur in the result, but without much confidence in the legal precedent cited. It is true that this Court, in Alexander v. Harris, 595 F.2d 87, 90-91 (2d Cir. 1979), equated the issuance of certificates of probable cause with the Supreme Court’s granting of certiorari, as being a sensible attempt to focus on issues meriting review. In my opinion, however, that decision was deficient in failing to observe the at least facially different standard set forth under the then new Rules Governing Section 2254 Cases. Rule 4 provides for summary dismissal “[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief.” The. Court equated that with the frivolous claims standard used in judging petitions when appealed. It is submitted that it is possible (as occurred in Alexander v. Harris) to have a petition that is not frivolous, but plainly appears not to entitle the petitioner to relief. It occurred in that case because a scholarly state court opinion had thoroughly disposed of the petitioner’s claims, so that the disposition of the petition was certain, although the issue was not frivolous.
Moreover, analogy to the Supreme Court’s certiorari practice is not particularly helpful, since it is not clear where the Supreme Court obtains that power. At common law, a writ of certiorari entailed a review of the entire record from the lower court. See 1 W.S. Holdsworth, A History of English Law 228 (3d ed. 1922). The statute covering certiorari allows the Su*103preme Court to grant or deny the writ, but makes no reference to limiting the writ to specific questions. 28 U.S.C. § 1254(1). (In contrast, 28 U.S.C. § 1254(3) specifically allows a circuit court to certify only certain questions for review by the Supreme Court.)
Regardless of the absence of specific procedures or authority, appellate courts should have the inherent discretion to limit issues heard on appeal where a certificate of probable cause is required. It seems that there are few serious state felony convictions that do not eventuate in federal habe-as corpus petitions. Virtually all unsuccessful petitioners attempt to appeal. Where appeal is allowed, a court appointed attorney (paid by the federal government) is usually assigned. The enormous burden on the federal courts must be alleviated, while at the same time preserving access to the courts for the petitioner with a valid grievance. One way of accomplishing this is by retaining the power of the appellate courts to restrict the issues on appeal to those that are worthy of being heard. Consequently, I concur in principle with the rule enunciated by the Court and dissent only from its application to this particular case.