On Application for a Certificate of Probable Cause. Appeal from the United States District Court for the Central District of Illinois, Danville Division, No. 86-2192, Harold A. Baker, Judge.
Wood, Jr., Coffey and Ripple, Circuit Judges.
Petitioner-appellant Larry Smith, a state prisoner, petitioned the district court for a writ of habeas corpus, challenging the legality of his incarceration. Following the district court's denial of his petition, Smith applied to the district court for a certificate of probable cause for appeal, as required by 28 U.S.C. § 2253. Attempting to limit the certificate to one of the four issues Smith raised in his petition, the district court granted the application in part and denied it in part. Smith's appeal of the district court's order presents a question which has occasioned a split among the circuits: whether a district court's attempt to limit a certificate of probable cause to specific issues has an effect upon the disposition of the petitioner's appeal. Compare Barber v. Scully, 731 F.2d 1073 (2d Cir. 1984) (district court may grant limited certificate); Vicaretti v. Henderson, 645 F.2d 100 (2d Cir. 1980) (Court of Appeals panel may grant limited certificate) with United States ex rel. Hickey v. Jeffes, 571 F.2d 762 (3d Cir. 1978) (Court of Appeals' grant of limited certificate is improper); Houston v. Mintzes, 722 F.2d 290 (6th Cir. 1983) (district court's grant of limited certificate is improper); Van Pilon v. Reed, 799 F.2d 1332 (9th Cir. 1986) (same). We hold that the district court's attempt to limit a certificate of probable cause to specific issues does not affect our disposition of the petitioner's appeal.
Smith's petition for a writ of habeas corpus alleges that: 1) prosecutorial misconduct deprived him of a fair trial; 2) his sentence was unconstitutionally excessive; 3) the trial court's failure to grant him a new trial, based upon a "split" verdict, deprived him of his right to a fair trial; and 4) the state courts' failure to address his contentions regarding the applicability of prior precedent, his potential for rehabilitation, and the existence of mitigating circumstances on direct appeal violated his right to due process.
After the district court denied Smith's petition for a writ of habeas corpus in its entirety, Smith applied for a certificate of probable cause pursuant to 28 U.S.C. § 2253. The district court's order granted the certificate only as to the issue of the prosecutor's alleged misconduct but denied the certificate with respect to the remaining three issues (as well as an issue concerning testimony admitted at sentencing raised for the first time in the application for a certificate). Thereafter, Smith filed a notice of appeal with this Court.
Since we construe Smith's notice of appeal as requesting this court issue a certificate of probable cause, Fed. R. App. P. 22(b), we would ordinarily be called upon to evaluate each issue Smith raises in his petition for a writ of habeas corpus in order to determine whether an unlimited certificate of probable cause should issue from this Court. Before doing so in this case, however, we must determine whether or not the district court's attempt to limit the certificate to specific issues has an effect on either our decision to grant or deny petitioner's request that this Court issue a certificate, or on our disposition of the resulting appeal. Because we hold that the district court may not limit a certificate of probable cause to specific issues, we construe the district court's action as a grant of an unlimited certificate.
The procedure for appealing a district court's grant or denial of a petition for a writ of habeas corpus is governed by federal statute and Fed. R. App. P. 22(b). Under the provisions of 28 U.S.C. § 2253,
An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a State court, unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause.
(Emphasis added.) 28 U.S.C. § 2253. Federal Rule of Appellate Procedure 22(b) provides:
1. The Second Circuit ...