John W. PEOPLES, Jr., Petitioner-Appellant,

                                                       v.

Michael W. HALEY, Commissioner of the Alabama Department of Corrections, Attorney General of the
State of Alabama, Respondents-Appellees,
                                                 No. 98-6882.

                                       United States Court of Appeals,
                                               Eleventh Circuit.

                                                Sept. 18, 2000.

Appeal from the United States District Court for the Northern District of Alabama.(No. 94-02175-CV-B-E),
Sharon Lovelace Blackburn, Judge.
Before ANDERSON, Chief Judge, and TJOFLAT and MARCUS, Circuit Judges.
        PER CURIAM:

        We vacate and withdraw the previous opinion in this case, dated September 7, 2000, and substitute
the following opinion.
                                                       I.

        On December 7, 1983, John W. Peoples, Jr. was convicted of capital murder and sentenced to death
for the murders of Paul Franklin, Sr., his wife Judy Franklin, and their ten-year-old son, Paul Franklin, Jr. His

convictions and death sentences were affirmed on direct appeal. See Peoples v. State, 

(Ala.Crim.App.1986); Ex Parte Peoples, 

(Ala.1987). After Peoples unsuccessfully sought

collateral review in state court, he petitioned the United States District Court for the Northern District of
Alabama for a writ of habeas corpus on September 6, 1994. His petition, as subsequently amended, contained
twenty-six claims, which we set out in the margin.1


   1
     Reduced to their essence, the twenty-six claims were: (1) Peoples was medicated throughout the
course of preindictment, pretrial, and trial proceedings and not fully able to assist counsel in his defense
of capital murder charges in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments; (2)
Peoples was denied constitutionally guaranteed effective assistance of counsel, prior to indictment,
leading to his own production of virtually all evidence later admitted against him at trial in violation of
the Fifth, Sixth, Eighth, and Fourteenth Amendments; (3) the State offered no evidence that Paul
Franklin, Sr. was murdered, and Peoples' three capital murder convictions relating to Paul Franklin, Sr.'s
death stand in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments; (4) evidence and extra
record information and displays concerning the Franklin family subverted Peoples' fundamental rights to
due process and a fair trial in contravention of the Fifth, Sixth, Eighth, and Fourteenth Amendments; (5)
Peoples' convictions cannot withstand constitutional muster because they are based on the admittedly
perjurious testimony of his co-defendant and alleged accomplice, Timothy Gooden; (6) the district
attorney's abusive conduct was pervasive and worked to effect a fundamentally unfair trial in violation of
the Fifth, Sixth, Eighth, and Fourteenth Amendments; (7) Peoples was denied constitutionally guaranteed
        In an order signed on September 30, 1998, the district court, finding many of Peoples' claims either

procedurally barred or without merit, denied Peoples' petition without an evidentiary hearing. On October
28, 1998, relying on the version of 28 U.S.C. § 2253 in place before the effective date of the Antiterrorism



effective assistance of counsel at trial, on appeal, and in post-conviction proceedings in violation of his
rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments; (8) the trial court's repeated failure to
grant Peoples a change of venue violated his constitutional rights to a fair trial, an impartial jury, and a
sentencing hearing free from bias and prejudice; (9) Peoples' right to a fair trial by an impartial jury was
violated by the trial court's unconstitutional restrictions on the voir dire examinations of prospective
jurors in contravention of the Fifth, Sixth, Eighth, and Fourteenth Amendments; (10) the district
attorney's racially biased use of peremptory strikes to exclude black persons from Peoples' jury was a
gross violation of his Eighth and Fourteenth Amendment rights; (11) the trial court committed
constitutional error in denying Peoples' motion for a mistrial, or in the alternative, for continuance of jury
selection, after the district attorney commented during voir dire on the ramifications of defendant's
potential failure to testify; (12) the trial court's refusal to challenge for cause prospective juror Jimmy
Chastain, a reserve Talladega County deputy sheriff who investigated the crime, denied Peoples a fair
trial and a reliable sentencing procedure guaranteed by the Fifth, Sixth, Eighth, and Fourteenth
Amendments; (13) Peoples was illegally arrested in the early afternoon of July 11, 1983, outside
Wesson's Pharmacy in Childersburg, Talladega County, Alabama, and all the evidence subsequently
obtained as the fruits of that unlawful arrest must be suppressed as violations of his Fourth, Fifth, Sixth,
Eighth, and Fourteenth Amendment rights; (14) the bill of sale and tag receipt for a Corvette, obtained
from Peoples as a result of his custodial interrogation by Childersburg Police Chief Ira Finn without any
warning or waiver of his constitutional rights under Miranda, violated Peoples' Fourth, Fifth, Sixth,
Eighth, and Fourteenth Amendment rights; (15) the identification of Timothy Gooden, obtained from
Peoples as a result of the custodial interrogation by Childersburg Police Chief Ira Finn without any
warning or waiver of his constitutional rights under Miranda, violated Peoples' rights under the Fourth,
Fifth, Sixth, Eighth, and Fourteenth Amendments; (16) the car, papers, clothing, and boots, obtained
from Peoples as a result of his custodial interrogation by Childersburg Police Chief Ira Finn without any
warning or waiver of his constitutional rights under Miranda, violated Peoples' Fourth, Fifth, Sixth,
Eighth, and Fourteenth Amendment rights; (17) the trial court committed error of constitutional
dimension, having erroneously refused to grant the motion to suppress, by admitting into evidence all
evidence obtained from the crime scene to which Peoples had directed law enforcement authorities, in
violation of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments; (18) Peoples' rights under the
Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments were violated by the admission into evidence at
trial of his illegally obtained statement on July 19, 1983; (19) Peoples' rights under the Sixth, Eighth, and
Fourteenth Amendments were violated by the admission into evidence at trial of his illegally obtained
statement regarding the location of the purported murder weapon on July 22, 1983; (20) the State's
conduct in seizing a tape recorder belonging to defense counsel's investigator, which had previously been
provided to Peoples for use in preparing his defense and communicating with counsel, violated Peoples'
Sixth Amendment right to counsel and Fifth and Fourteenth Amendment rights to due process, and
requires dismissal of the indictment; (21) the trial court's refusal to quash the prosecution's subpoena of
defense counsel's investigative assistant for the entire duration of the trial intruded on Peoples' Sixth
Amendment right to counsel and deprived him of his Fifth and Fourteenth Amendment rights to due
process; (22) the trial court acted improperly and committed reversible error of constitutional dimension
by admitting, without any witnesses and opportunity for constitutionally mandated confrontation, a
ten-year-old, unauthenticated hospital record to connect one victim to the purported murder weapon, in
violation of Peoples' rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments; (23) the trial
court's instruction on the defendant's failure to testify, which left the impression that an adverse inference
could be drawn, violated Peoples' constitutional rights to a fair trial and due process; (24) the trial court
erred in allowing the prosecutor to question defense witnesses at the sentencing hearing about a pending
felony charge and some worthless check allegations, in violation of Peoples' rights under the Fifth, Sixth,
Eighth, and Fourteenth Amendments; (25) the trial court's finding of aggravating circumstances violated
Peoples' rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments; and (26) the jury's
sequestration and its deliberations were unconstitutionally tainted.
and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (the "AEDPA"), Peoples

filed an application for a certificate of probable cause ("CPC") and a notice of appeal in the district court.
On November 16, 1998, the district court granted Peoples a CPC. In doing so, the court observed:

        Under the AEDPA, a habeas petitioner appealing the denial of his petition must obtain a "certificate
        of appealability" in order to proceed with an appeal. Because Peoples filed his petition for a writ of
        habeas corpus in this court on September 6, 1994, prior to the April 24, 1996 effective date of the
        AEDPA, he is correct in seeking a certificate of probable cause rather than a certificate of
        appealability. See Hardwick v. Singletary, 

, 1313 (11th Cir.1997) (recognizing that
        Lindh v. Murphy, 

, 

, 2068, 

(1997), effectively
        "abrogates and supplants" that portion of Hunter v. United States, 

(11th Cir.1996),
        governing certificates of appealability in cases pending on the effective date of the AEDPA). As a
        practical matter, however, the Eleventh Circuit has concluded that the standard governing certificates
        of probable cause under pre-AEDPA law and certificates of appealability under the AEDPA "is
        materially identical." 

(adopting the Fifth Circuit's conclusion in Green
        v. Johnson, 

, 1120 (5th Cir.1997), that the AEDPA was intended to codify the standard
        established in Barefoot v. Estelle, 

, 893, 

, 

(1983)).

                 The standard, which petitioner must satisfy to obtain appellate review of the decision of this
        court's disposition of his petition for a writ of habeas corpus, requires a "substantial showing of a
        denial of [a] federal right." Barefoot v. 

, 

. Furthermore, the
        United States Supreme Court has recognized that the nature of the penalty—in this case, death—is
        a "proper consideration in determining whether to issue a certificate of probable cause." 

April 24, 1996, the effective date of the AEDPA, a habeas petitioner who had been denied

relief had to obtain a CPC from the district court in order to prosecute an appeal. See Tompkins v. Moore,

, 1330 (11th Cir.1999); 28 U.S.C. § 2253 (1994). In issuing a CPC, a district court did not

have to enumerate those issues for which a petitioner had made a "substantial showing of the denial of [a]

federal right." Barefoot v. Estelle, 

, 893, 

, 3394, 

(1983) (quoting

Stewart v. Beto, 

, 270 n. 2 (5th Cir.1971), overruled in part on other grounds by Lindh v.

Murphy, 

, 

, 

(1997)).

        The AEDPA amended 28 U.S.C. § 2253 to require a petitioner to request a certificate of appealability

("COA") instead of a CPC, see Henry v. Department of Corrections, 

, 1364-66 (11th Cir.1999)

(describing statutory history), and established a statutory standard, set out in section 2253(c)(2), for the

issuance of a COA. See 28 U.S.C. § 2253(c)(2) (Supp. IV 1999). Unlike the procedure for the issuance of

a CPC, under the amended version of section 2253, the district court, when granting a COA, must "indicate
[for] which specific issue or issues" the petitioner has "made a substantial showing of the denial of a

constitutional right." 28 U.S.C. § 2253(c)(2), (3).

        Following the Supreme Court's decision in 

, 117 S.Ct. at 2068 (holding that
the Chapter 153 amendments, which apply to all federal habeas petitions, are inapplicable to federal habeas
petitions pending on the date of the AEDPA's enactment), the lower federal courts concluded that the

pre-AEDPA procedure for obtaining a CPC applied if the petitioner's habeas petition and notice of appeal

from the district court's denial of that petition were filed in the district court before April 24, 1996, the

AEDPA's effective date. See generally Mincey v. Head, 

, 1130 & n. 58 (11th Cir.2000).

Neither Lindh nor the lower court decisions that followed, however, clearly answered the question whether

the AEDPA required an unsuccessful habeas petitioner to obtain a COA from the district court in order to

appeal the denial of relief if the notice of appeal was filed after the effective date of the AEDPA.2 Compare

Tiedeman v. Benson, 

, 520-21 (8th Cir.1997) (holding that COA is required in cases in which

the notice of appeal is filed after the effective date of the AEDPA, even though the habeas petition was

originally filed in the district court before that date), with Fuller v. Roe, 

, 702 (9th Cir.1999)

(joining the majority of circuit courts in holding "that §§ 2254 and 2255 petitioners who filed their petitions

in district court prior to AEDPA's effective date, regardless of whether they filed their notice of appeal before
or after AEDPA's [effective date], do not need a certificate of appealability to proceed with their appeal")

(quoting United States v. Kunzman, 

, 1364 n. 2 (10th Cir.1997)); Crowell v. Walsh, 

, 1052 (D.C.Cir.1998) (same); Tejeda v. Dubois, 

, 21-22 & n. 4 (1st Cir.1998) (same);

Berrios v. United States, 

, 431 n. 2 (2d Cir.1997) (same); United States v. Skandier, 

, 179-82 (3rd Cir.1997) (same); Hardwick v. Singletary, 

, 936 (11th Cir.) (per curiam),

modified on reh'g per curiam, 

, 1313 (11th Cir.1997)(same); Arredondo v. United States, 

, 640 (6th Cir.1997) (same); United States v. Carter, 

, 264 (5th Cir.1997) (same).

         Earlier this year, the Supreme Court, in Slack v. McDaniel, --- U.S. ----, 

, 

     The law in this circuit has been confused by the Supreme Court's decisions in Lindh v. Murphy, 

, 

, 

(1997), and Slack v. McDaniel, --- U.S. ----, 

,

(2000). Our first interpretation of COA requirements under the AEDPA, in Hunter v.
United States, 

, 1567 (11th Cir.1996) (en banc), held that a district court was authorized to
issue a COA and that the AEDPA's amendments requiring a COA applied to "all 28 U.S.C. § 2254 cases
in which no [CPC] was obtained under preexisting law before the [AEDPA's] effective date ..., and to all
28 U.S.C. § 2255 cases in which no notice of appeal was filed before that effective date." After Lindh
was handed down, we interpreted Lindh as overruling Hunter to the extent that Hunter required a COA
for cases in which no notice of appeal had been filed before the AEDPA's effective date. See Hardwick v.
Singletary, 

, 936 (11th Cir.) (per curiam), modified on reh'g per curiam, 

,
1313 (11th Cir.1997). The Supreme Court's recent decision in Slack clarified the issue, as explained in
the text infra. It is now clear that Hunter was correctly decided in the first place, and that Hardwick 's
statements interpreting Lindh as overruling part of Hunter were incorrect. Thus, we now recognize that
Slack effectively overrules Hardwick and reinstates Hunter as the law of this circuit.
542 (2000), answered the question, holding that, in a section 2254 or 2255 proceeding,

        when a habeas corpus petitioner seeks to initiate an appeal of the dismissal of a habeas corpus
        petition after April 24, 1996 (the effective date of the AEDPA), the right to appeal is governed by
        the certificate of appealability (COA) requirements now found at 28 U.S.C. § 2253(c) (1994 ed.,
        Supp. III). This is true whether the habeas corpus petition was filed in the district court before or
        after AEDPA's effective date.

.3 Pursuant to Slack, it is now clear that there should have been a COA in this case

rather than a CPC, which raises the question whether this court should itself apply the COA standards or
remand for the district court to do so.

         As we held in Franklin v. Hightower, 

(11th Cir.2000) (per curiam):

        [T]he grant of a CPC rather than a COA ... is not fatal to the appeal. By applying AEDPA's standards
        to this appeal and issuing a proper COA (if warranted), this panel may "fix" the inadequacies of the
        present CPC.... And the Court in Slack remanded the case in part for the court of appeals to apply
        the appropriate standard, thus implying that defective leave to appeal neither dooms the appeal nor
        deprives the appellate courts of jurisdiction. See 

.

In other words, in this situation, it is within the discretion of the court of appeals whether to

apply the COA standards itself, or remand to the district court. Considerations of judicial economy will
influence this decision.

        In Hunter v. United States, 

, 1575 (11th Cir.1996) (en banc),4 the district court had

granted a COA, but had neglected to indicate for which of the issues the applicant had made a substantial
showing of the denial of a constitutional right, in accordance with section 2253(c)(3)'s command. We

remanded the case to the district court so it could perform this statutorily mandated function. 

. We also remanded the case because the petitioner had raised numerous claims in his application
for a COA and it was impossible for us to glean from the record which issue or issues the district court


   3
    Subsection (c), as amended by the AEDPA, provides:

                 (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not
                 be taken to the court of appeals from—

                 (A) the final order in a habeas corpus proceeding in which the detention complained of
                 arises out of process issued by a State court; or

                 (B) the final order in a proceeding under section 2255.
                 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has
                 made a substantial showing of the denial of a constitutional right.

                 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue
                 or issues satisfy the showing required by paragraph (2).
   4
    See supra note 2.
thought worthy of appellate review.5 Cf. Murray v. United States, 

, 1250-51 (11th Cir.1998)

(limiting appellate review to the issue or issues specified in the COA).

        We are faced in the instant appeal with a case similar to Hunter, and as with Hunter, remanding the

matter to the district court is the proper course of action. See, e.g., 

(noting that "we

remand the case to the district court for compliance with the requirement of 28 U.S.C. § 2253(c)(3) that the

certificate of appealability indicate which specific issue or issues satisfies the § 2253(c)(2) standard");

Edwards v. United States, 

, 1084-85 (11th Cir.1997) (per curiam) (concluding that "[b]ecause

appeals ... filed after the effective date of the Antiterrorism and Effective Death Penalty Act are ineffective

without a COA, [this appeal is] not before us on the merits" and remanding the case to the district court to

grant or deny a COA); United States v. Weaver, 

, 53 (D.C.Cir.1999) (stating that "we must

remand the record for the district court to specify the issue or issues for appeal"); Muniz v. Johnson, 

, 45-46 (5th Cir.1997) (stating that "we conclude that when a district court issues a CPC or COA that does
not specify the issue or issues warranting review, as required by 28 U.S.C. § 2253(c)(3), the proper course

of action is to remand to allow the district court to issue a proper COA, if one is warranted"); Lyons v. Ohio

Adult Parole Auth., 

, 1076 (6th Cir.1997), overruled in part on other grounds by 

, 117 S.Ct. at 2061 ("Because the certificate issued by the district court does not comply with
[the requirements of 28 U.S.C. § 2253(c)], we believe it would be improper for us to examine the merits of
Lyons's petition. Accordingly, we remand the case to allow the district court to issue a proper certificate of

appealability consistent with this opinion."). But cf. 

(holding that the later panel

could "fix" the deficient CPC, which had been issued by a single circuit judge after the district court had
denied a CPC, even though a COA rather than a CPC should have been issued).

        To be faithful to the amended version of section 2253(c), and Supreme Court and Eleventh Circuit

precedent, we vacate the district court's CPC and remand the case to the district court with the instruction that

the court "indicate which specific issue or issues satisfy" the standard of a "substantial showing of the denial
of a constitutional right." 28 U.S.C. § 2253(c)(2), (3).

        SO ORDERED.



   5
     In certain circumstances, such as when a petitioner presents only one claim to the district court,
remand for a determination of what issues merit review under section 2253(c) may be unnecessary. See,
e.g., Else v. Johnson, 

, 83 (5th Cir.1997). The instant case is markedly different, however,
because Peoples presented not one, but twenty-six claims to the district court.