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SLACK v. McDANIEL, WARDEN, ET AL - 529 U.S. 473 (2000)





No. 98-6322. Argued October 4, 1999-Reargued March 29, 2000Decided April 26, 2000

Mter petitioner Slack was convicted of second-degree murder in Nevada and his direct appeal was unsuccessful, he filed, in 1991, a federal habeas corpus petition under 28 U. S. C. § 2254. Because he wished to litigate claims he had not yet presented to the Nevada courts, but could not do so under the rule requiring complete exhaustion of state remedies, see Rose v. Lundy, 455 U. S. 509, Slack filed a motion to hold his federal petition in abeyance while he returned to state court. The Federal District Court ordered the habeas petition dismissed without prejudice, granting Slack leave to file an application to renew upon exhausting state remedies. Mter unsuccessful state postconviction proceedings, Slack filed anew in the federal court in 1995, presenting 14 claims for relief. The State moved to dismiss, arguing that (1) Slack's was a mixed petition raising some claims which had been presented to the state courts and some which had not, and (2) under the established Ninth Circuit rule, claims not raised in Slack's 1991 federal petition had to be dismissed as an abuse of the writ. The District Court granted the State's motion, holding, first, that Slack's 1995 petition was "[a] second or successive petition," even though his 1991 petition had been dismissed without prejudice for a failure to exhaust state remedies. The court then invoked the abuse of the writ doctrine to dismiss with prejudice the claims Slack had not raised in the 1991 petition. The dismissal order was filed in 1998, after which Slack filed in the District Court a pleading captioned "Notice of Appeal." Consistent with Circuit practice, the court treated the notice as an application for a certificate of probable cause (CPC) under the version of § 2253 that existed before enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). It denied a CPC, concluding the appeal would raise no substantial issue. The Ninth Circuit likewise denied a CPC, so that Slack was not permitted to appeal the order dismissing his petition.


1. Where a habeas petitioner seeks to initiate an appeal of the dismissal of his petition after April 24, 1996 (AEDPA's effective date), the right to appeal is governed by the requirements now found at § 2253(c)which provides, inter alia, that such an appeal may not be taken unless



a circuit Justice or judge issues a certificate of appealability (COA), § 2253(c)(1), and that the COA may issue only if the applicant has made a substantial showing of the denial of a constitutional right, § 2253(c)(2)-even though the habeas petition was filed in the district court before AEDPA's effective date. Slack argues incorrectly that the pre-AEDPA version of the statute, not § 2253(c), controls his case because, in Lindh v. Murphy, 521 U. S. 320, 327, this Court held that AEDPA's §2254 amendments governing entitlement to district court habeas relief applied to cases filed after AEDPA's effective date. In implementing Lindh, it must be recognized that § 2254 is directed to district court proceedings while § 2253 is directed to appellate proceedings. Just as § 2254 applies to cases filed in the trial court post-AEDPA, § 2253 applies to appellate proceedings initiated post-AEDPA. Although Lindh requires a court of appeals to apply pre-AEDPA law in reviewing the trial court's ruling in cases commenced there pre-AEDPA, postAEDPA law governs the right to appeal in cases such as the present. While an appeal is a continuation of the litigation started in the trial court, it is a distinct step. E. g., Hohn v. United States, 524 U. S. 236, 241. Under AEDPA, an appellate case is commenced when the application for a COA is filed. Ibid. When Congress instructs that application of a statute is triggered by the commencement of a case, the relevant case for a statute directed to appeals is the one initiated in the appellate court. Because Slack sought appellate review of the dismissal of his habeas petition two years after AEDPA's effective date, § 2253(c) governs here, and Slack must apply for a COA. The Ninth Circuit should have treated his notice of appeal as such an application. Pp. 480-482.

2. When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue (and an appeal of the district court's order may be taken) if 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. Pp. 483-485.

(a) The Court rejects the State's contentions that, because § 2253(c) provides that a COA may issue upon the "substantial showing of the denial of a constitutional right," only constitutional rulings may be appealed, and no appeal can be taken if the district court relies on procedural grounds to dismiss the petition. In setting forth the preconditions for issuance of a COA under § 2253(c), Congress expressed no intention to allow trial court procedural error to bar vindication of substantial constitutional rights on appeal. This conclusion follows from

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