In its July 6, 1999 order, the district court stated as follows:[T]he court has considered the fact that this is a capital case involving issues that are "debatable among jurists of reason" and that "a court could resolve the issues in a different manner." While this court has resolved the issues against Petitioner, and is confident of the correctness of its decision, the foregoing findings by the court are sufficient to authorize the issuance of a certificate of probable cause under Barefoot v. Estelle, 463 U.S. 880, 893 (1983), thus allowing Petitioner's counsel to appeal this court's grant of Petitioner's request to waive his appeals, to dismiss counsel and the dismissal of a writ of habeas corpus in this death penalty case. Accordingly, it is ORDERED that the certificate of probable cause is hereby issued.II.
A 'substantial showing' requires the applicant to 'demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.'"Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir.1996) (quotingBarefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)).SeeSlack v. McDaniel, ___ S.Ct. ___, 2000 WL 478879, *6-7 (U.S. S.Ct. Apr. 26, 2000).
This conclusion follows from AEDPA’s present provisions, which incorporate earlier habeas corpus principles. Except for substituting the word “constitutional” for the word “federal,” the present §2253 is a codification of the CPC standard announced in Barefoot v. Estelle, 463 U.S. 880, 894. See Williams v. Taylor, ante, at ___.
Before the enactment of AEDPA, petitioners needed to make a "substantial showing of [a] federal right," to obtain a certificate of probable cause. Barefoot v. Estelle, 463 U.S. 880, 894, 77 L. Ed. 2d 1090, 103 S. Ct. 3383 (1983). AEDPA codified this language as the standard for obtaining a COA, except that it substituted the word "constitutional" for "federal."
The Supreme Court has observed that an applicant has made a “substantial showing” where “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)).The principle may be settled, but the particular result is interesting.
The Supreme Court has interpreted this language to require a showing that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000), following Barefoot v. Estelle, 463 U.S. 880, 893 (1983).When a state appellate court is divided on the merits of the constitutional question, issuance of a certificate of appealability should ordinarily be routine.
The Federal Death Penalty Act (“FDPA”) provides that evidence may be admitted, “regardless of its admissibility under the rules governing admission of evidence at criminal trials.”Even if reliability was at issue, the Court was informed by the reasoning of Barefoot v. Estelle, 463 U.S. 880 (1983), which upheld the reliability and admissibility of future dangerousness predictions:In the instant case, Dr. Coons’s testimony was probative because Fields’s jury was required to make an assessment of future dangerousness and because the jury could benefit from the opinion of a psychological expert on that matter. Moreover, as Barefoot noted, the adversarial system reduces any prejudicial unreliability in future dangerousness expert testimony because it can expose the flaws in such testimony.
As the Court of Appeals observed in this case, §2253(c) permits the issuance of a COA only where a petitioner has made a “substantial showing of the denial of a constitutional right.” In Slack, supra, at 483, we recognized that Congress codified our standard, announced in Barefoot v. Estelle, 463 U.S. 880 (1983), for determining what constitutes the requisite showing. Under the controlling standard, a petitioner must “sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ”
The Texas Court of Criminal Appeals once again dis-missed the petition as an abuse of the writ, and Davis petitioned this Court for a stay of execution pending its decision in Atkins, supra.It is apparent on the face of both these applications that the conditions for stay do not exist.A stay is appropriate only when there is a “reasonableprobability” that four Members of this Court will grant certiorari, a “significant possibility” that the Court, after hearing the case, will reverse the decision below, and a “likelihood” that the applicant will suffer irreparable harm absent a stay. Barefoot v. Estelle, 463 U. S. 880, 895 (1983); see also Rubin v. United States, 524 U. S. 1301, 1302 (1998) (REHNQUIST, C. J., in chambers); Edwards v. Hope Medical Group for Women, 512 U. S. 1301, 1302 (1994) (SCALIA, J., in chambers). It is a firm rule that “[t]his Court will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.”
Yet, in granting a certificate of appealability as to all claims, the court did not provide us with any analysis to indicate that it had engaged in the two-pronged inquiry set forth in Slack as to each of the procedurally defaulted claims. Rather, the court simply ordered, "In accordance with the standard set forth in Barefoot v. Estelle, 463 U.S. 880, 893 (1983), and Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1073 (6th Cir. 1997), the Court hereby GRANTS a certificate of appealablity as to each of the claims raised in the petition." Order, January 17, 2001. . . .Since the enactment of AEDPA, this court has noted a disturbing lack of uniformity throughout the districts of our circuit with respect to how trial courts are to determine the extent to which certificates of appealability should issue.