First, is 1st Cir. R. 22.1(c) (Interim Local Rule) inconsistent with 28 U.S.C. § 2253(c)(1) and Fed. R. App. P. 22(b) (as these provisions were amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")) insofar as it requires appellants seeking collateral relief under 28 U.S.C. §§ 2254 or 2255 who already have obtained a certificate of appealability ("COA") from a district judge as to one or more issues also to obtain a COA on those issues from the court of appeals? Second, if the merits of this case are properly before us, did the district court err in concluding that the challenged state ruling was neither contrary to, nor involved an unreasonable application of, "clearly established Federal law, as determined by the Supreme Court of the United States"?

First, is 1st Cir. R. 22.1(c) (Interim Local Rule) inconsistent with 28 U.S.C. § 2253(c)(1) and Fed. R. App. P. 22(b) (as these provisions were amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")) insofar as it requires appellants seeking collateral relief under 28 U.S.C. §§ 2254 or 2255 who already have obtained a certificate of appealability ("COA") from a district judge as to one or more issues also to obtain a COA on those issues from the court of appeals? Second, if the merits of this case are properly before us, did the district court err in concluding that the challenged state ruling was neither contrary to, nor involved an unreasonable application of, "clearly established Federal law, as determined by the Supreme Court of the United States"?

" After exhausting his state appeals, Wright petitioned the United States District Court for the Eastern District of Virginia for habeas relief. The district court denied Wright's petition and his motion for a Certificate of Appealability (COA), see 28 U.S.C.A. § 2253(c)(1)(B)(2) (West Supp. 1998); Fed. R. App. P. 22(b). After reviewing the record, briefs, and having had the benefit of oral argument, we, too, conclude that Wright has failed to make "a substantial showing of the denial of a constitutional right.

This commonsense reading is supported by other portions of the habeas statute, e.g., sect. 2242, and by Federal Rule of Appellate Procedure 22(a). Congress has also legislated against the background of the "district of confinement" rule by fashioning explicit exceptions: E.g., when a petitioner is serving a state criminal sentence in a State containing more than one federal district, "the district . . . wherein [he] is in custody" and "the district . . . within which the State court was held which convicted and sentenced him" have "concurrent jurisdiction," sect.

1 Certificate of Appealability(a) Request to This Court for a COA. In a case governed by 28 U.S.C. § 2253 and FRAP 22(b), this court will not act on a request for a certificate of appealability (COA) unless the district court has denied a COA. If the district court denies a COA, the applicant must, within 28 days after the later of that denial or the filing of the notice of appeal, request a COA in this court.

The court decided that timeliness was "antecedent" to the issue of equitable tolling and petitioner had raised the question on appeal. The court cited to a prior case in which it took the same step and to Federal Rule of Appellate Procedure 22(b)(2), which allows a circuit court to construe a notice of appeal as a request for a COA.While the Second Circuit cites to a rule and a prior case, this really is the court exercising an inherent authority. It's an interesting procedural step, but I am not sure how broadly it can be applied.

1 Certificate of Appealability(a) Request to This Court for a COA. In a case governed by 28 U.S.C. § 2253 and FRAP 22(b), this court will not act on a request for a certificate of appealability (COA) unless the district court has denied a COA. If the district court denies a COA, the applicant must, within 28 days after the later of that denial or the filing of the notice of appeal, request a COA in this court.

But no court has demanded that a prisoner obtain a certificate of appealability in order to present an extra issue in a case already before the court on*398 the state's appeal, and we are content to apply 2253 as it is written. It serves a gatekeeping function, and once a case is properly before the court of appeals—for state and federal governments need not obtain certificates of appealability, see Fed. R. App. P. 22(b)(3) —there are no remaining gates to be guarded.So I guess the big question here will be whether the Supreme Court takes on the broader issue or keeps it limited. The merit briefs may provide some indication on how broad the issue before the Court will be.