                              REVISED
                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT
                           _______________

                             No. 96-50508
                           _______________



                            PEDRO MUNIZ,

                                             Petitioner-Appellant,

                               VERSUS

                      GARY L. JOHNSON, Director,
                Texas Department of Criminal Justice,
                        Institutional Division,

                                             Respondent-Appellee.

                      _________________________

          Appeal from the United States District Court
                for the Western District of Texas
                    _________________________

                            May 20, 1997

Before SMITH, BARKSDALE, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:


     Pedro Muniz, proceeding in forma pauperis, appeals the denial

of his petition for writ of habeas corpus.      We vacate the district

court’s certificate of probable cause (“CPC”) and remand the entire

case to allow the district court to decide whether a certificate of

appealability (“COA”), specifying which issues warrant review,

should issue.



                                 I.
     In February 1986, Muniz was convicted of capital murder and

sentenced to death for the 1977 murder and rape of a college

student.   See Muniz v. Texas, 851 S.W.2d 238, 242-43, 246 (Tex.

Crim. App. 1993).    After Muniz unsuccessfully sought state habeas

review, he filed a federal habeas petition, raising twenty-two

claims for relief.      The district court denied the writ in a

comprehensive, 101-page opinion on June 6, 1996, and a few days

later granted Muniz a CPC.



                                 II.

     Prior to the enactment of § 102 of the Antiterrorism and

Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. No. 104-132,

110 Stat. 1214, 1217-18 (1996) (codified at 28 U.S.C. § 2253), a

habeas petitioner had to receive a CPC to appeal.   See 28 U.S.C.A.

§ 2253 (West 1994).     Section 2253, as amended by the AEDPA, now

requires the petitioner to receive a COA, and this requirement

applies to petitioners who did not receive a CPC prior to April 24,

1996, the effective date of the AEDPA.   See Drinkard v. Johnson, 97

F.3d 751, 755-56 (5th Cir. 1996), cert. denied, 117 S. Ct. 1114

(1997).

     The standard for obtaining a COA is the same as for a CPC.

See id. at 756.     There is, nonetheless, at least one significant

difference:   A COA, unlike a CPC, must “indicate which specific

issue or issues satisfy the showing required . . . .”     28 U.S.C.




                                  2
§ 2253(c)(3).1

         The district court, acting before we decided Drinkard, granted

Muniz a CPC that did not specify which issues, if any, warrant

appellate review.      This CPC does not comply with § 2253(c)(3) and,

therefore, is insufficient to vest jurisdiction in this court.

Requiring the state to respond to Muniz’s appeal without the

benefit of knowing which issues are worthy of appeal “would . . .

nullify this newly amended section by transforming the application

for a COA into an appeal on the merits.”             Lucas v. Johnson, 101

F.3d 1045, 1046 (5th Cir. 1996) (per curiam).



                                      III.

         We must determine whether we should decide ourselves whether

a COA should issue or, instead, should remand to the district

court.2      First, we turn to the text of FED. R. APP. P. 22(b), as

amended by § 103 of the AEDPA.         Rule 22(b) states:



     1
       A limited exception applies where the petitioner presented only one issue
to the district court. In such a case, we do not require the technicality of
specifying that lone issue. See Else v. Johnson, 104 F.3d 82, 83 (5th Cir. 1997)
(per curiam) (on reconsideration).
         2
        We previously ordered the state to file a brief addressing whether, and
on which issues, a COA should issue. At the time we issued this briefing order,
it would have been imprudent to remand, as this court had not decided whether
district courts have the power to issue COA’s. Compare 28 U.S.C. § 2253(c)(1)
(“Unless a circuit justice or judge issues a certificate or appealability, an
appeal may not be taken . . . .”) with FED. R. APP. P. 22(b) (“[T]he district
judge who rendered the judgment shall either issue a certificate of appealability
or state the reasons why such a certificate should not issue.”). We now know
that district courts have the power to issue COA’s. See Else, 104 F.3d at 83;
accord United States v. Asrar, 108 F.3d 217, 218 (9th Cir. 1997) (order); Houchin
v. Zavaras, 107 F.3d 1465, 1468-69 (10th Cir. 1997); Lozada v. United States, 107
F.3d 1011, 1015-16 (2d Cir. 1997); Lyons v. Ohio Adult Parole Auth., 105 F.3d
1063, 1067-73 (6th Cir. 1997), cert. denied, 65 U.S.L.W. 3648 (U.S. May 12, 1997)
(No. 96-1461); Hunter v. United States, 101 F.3d 1565, 1573-83 (11th Cir. 1996)
(en banc), cert. denied, 65 U.S.L.W. 3648 (U.S. May 12, 1997) (No. 96-1443).

                                       3
     If an appeal is taken by the applicant, the district
     judge who rendered the judgment shall either issue a
     certificate of appealability or state the reasons why
     such a certificate should not issue. The certificate or
     the statement shall be forwarded to the court of appeals
     with the notice of appeal and the file of the proceedings
     in the district court. If the district judge has denied
     the certificate, the applicant for the writ may then
     request issuance of the certificate by a circuit
     judge. . . .

A district court must deny the COA before a petitioner can request

one from this court. The rule contemplates that the district court

will make the first judgment whether a COA should issue and on

which issues, and that the circuit court will be informed by the

district court’s determination in its own decisionmaking.                 Cf.

Lyons, 105 F.3d at 1076 n.18 (“The Rule does not, however, give us

the authority to correct a faulty certificate sua sponte.”).

     Second, deciding the COA issue ourselves risks inconsistent

adjudication.    Conceivably, we might decide that none of Muniz’s

claims for relief “make[s] a substantial showing of the denial of

a constitutional right,” and deny the COA. Yet, the district court

presumably must have found that at least one of his claims meetS

this standard, or it would not have issued the CPC.             It would be

ironic,   in   other   words,   if   the   district   court’s   failure   to

anticipate Drinkard resulted in Muniz’s losing his right to appeal.

     Third, we are cognizant of the district court’s superior

familiarity with this habeas petition. Its considerable experience

with this case should allow it accurately to determine which issues

satisfy the COA requirement.

     Finally, we note that two of our sister circuits have taken

the same action in almost identical situations.             See Porter v.

                                      4
Gramley, No. 96-2205, 1997 WL 202199, at *3 (7th Cir. Apr. 25,

1997); Lyons, 105 F.3d at 1076 & n.18.        Therefore, 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.3

      The CPC is VACATED, and this matter is REMANDED for further

consideration, as we have directed.




     3
       Although we assume the district court will issue a COA, we do not intend
to bind the court’s hands. Recent caselaw, especially our holding that the
standards of review contained in § 104 of the AEDPA apply to pending habeas
petitions, see Drinkard, 97 F.3d at 764-66, may lead the district court to
reconsider its earlier decision.

                                      5
