                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  _____________

                                  No. 97-1576WM
                                  _____________

Roy Ramsey,                          *
                                     *
                 Appellant,          *
                                     * Appeal from the United States
     v.                              * District Court for the Western
                                     * District of Missouri.
Michael Bowersox, Superintendent,    *
                                     *
                 Appellee.           *
                               _____________

                           Submitted: April 16, 1998
                               Filed: June 10, 1998
                                _____________

Before FAGG, JOHN R. GIBSON, and HANSEN, Circuit Judges.
                           _____________

FAGG, Circuit Judge.

       Roy Ramsey, a Missouri death row inmate, appeals the district court’s denial of
his petition for a writ of habeas corpus. See 28 U.S.C. § 2254. We affirm.

       On November 21, 1988, Ramsey and his brother, Billy, went to the home of an
elderly couple, Garnett and Betty Ledford, to rob them. Billy’s girlfriend drove the
brothers there in her car. Ramsey had a gun, but Billy did not. Garnett answered the
door, and Ramsey used the gun to force his way inside. The brothers took the Ledfords
upstairs to a bedroom. After Betty opened the Ledfords’ safe, the brothers tied her in
a chair. Billy went downstairs with some of the loot, including money, guns, a
videocassette recorder, and foreign coins, and Ramsey killed the Ledfords by shooting
each of them at close range in the head. Several days later, the brothers were caught.
Billy entered a plea agreement and testified against Ramsey in exchange for a twenty-
five-year sentence. A Missouri jury convicted Ramsey of first-degree murder and
sentenced him to death. The Missouri Supreme Court affirmed Ramsey’s conviction
and sentence on direct appeal. See State v. Ramsey, 864 S.W.2d 320 (Mo. 1993), cert.
denied, 511 U.S. 1078 (1994).

       Ramsey filed this federal habeas petition in December 1995. A year later, the
district court denied Ramsey’s petition. Seeking permission to appeal twenty-five
issues, Ramsey asked us “for a certificate of appealability pursuant to 28 U.S.C. §
2253(c) and Federal Rule of Appellate Procedure 22(b).” We remanded Ramsey’s
request to the district court for compliance with the statute and rule cited by Ramsey.
The district court granted a certificate of appealability on eleven issues and denied a
certificate on fourteen others. Ramsey then sought an expanded certificate of
appealability or certificate of probable cause from us. We denied Ramsey’s request and
thus limited the issues to only those that satisfied the standard for granting either
certificate--the same eleven identified by the district court. We turn initially to the
eleven issues certified for appeal.

       Ramsey first asserts he was denied effective assistance of counsel and due
process because his trial attorney had a conflict of interest. During the hearing on
Ramsey’s motion for a new trial, the prosecutor brought the court’s attention to a
newspaper article that spoke of letters written to Ramsey from Billy, whose judgment
in accordance with his plea agreement could still be set aside. In the letters, Billy
apologized for giving false testimony at Ramsey’s trial. The trial court asked Ramsey’s
attorney to produce the letters, and the attorney refused, citing a conflict of interest.
Ramsey asserts a conflict existed at the posttrial hearing with respect to the letters’
production because his attorney was at risk of being found to have provided ineffective
assistance during the trial in failing to use the letters. Ramsey’s counsel, a Missouri

                                          -2-
public defender from the district 48 office (Trial Trans. at 1852) sought to withdraw, but
the court denied the motion. Although the court doubted a conflict existed, the court
obtained a different Missouri public defender from the district 16 office (Trial Trans. at
1852) to advise Ramsey on the limited issue of whether to produce the letters at the
hearing on the motion for a new trial. Ramsey decided not to produce the letters.
Ramsey contends his trial attorney’s posttrial conflict carries over to all the Missouri
public defender’s offices, and thus the court should have appointed an attorney in
private practice to advise him.

        To prevail on his claim, Ramsey must show both an actual conflict of interest and
an adverse effect on his attorney’s performance. See Nave v. Delo, 62 F.3d 1024, 1034
(8th Cir. 1995), cert. denied, 517 U.S. 1214 (1996). Even if Ramsey’s trial attorney had
a conflict posttrial about production of the letters, it cannot be imputed to the attorney
from a different Missouri public defender’s office solely by reason of the statutorily
created relationship between the offices. See id. at 1034-35. Besides, Ramsey has not
shown any adverse effect from the presumed advice not to produce the letters at the new
trial hearing. Ramsey’s ineffective assistance claim also fails because, as the Missouri
Supreme Court found, his trial attorney’s failure to introduce the letters as evidence at
trial was not deficient performance, but sound trial strategy. See Ramsey, 864 S.W.2d
at 339. Indeed, at the new trial hearing, Billy testified his trial testimony was truthful
and the letters were fabricated.

       Second, Ramsey attacks the Missouri Supreme Court’s proportionality review
of his death sentence on direct appeal under Mo. Rev. Stat. § 565.035. Contrary to
Ramsey’s assertions, Missouri’s proportionality review does not violate the Eighth
Amendment, due process, or equal protection of the laws. See Sweet v. Delo, 125 F.3d
1144, 1159 (8th Cir. 1997), cert. denied, 118 S. Ct. 1197 (1998). The Missouri
Supreme Court concluded Ramsey’s “sentence is not disproportionate,” Ramsey, 864
S.W.2d at 327, and we see no basis for looking behind that conclusion, see Sweet, 125
F.3d at 1159.

                                           -3-
       Third, Ramsey contends his death sentence is based on an invalid aggravating
circumstance: that the homicide was “outrageously or wantonly vile, horrible or
inhuman in that it involved torture or depravity of mind.” According to Ramsey, this
aggravating circumstance is vague or overbroad because it does not define “torture or
depravity of mind.” “A finding of torture is sufficient to properly narrow the class of
persons eligible for the death penalty.” LaRette v. Delo, 44 F.3d 681, 686 (8th Cir.
1995). As for depravity of mind, the Missouri Supreme Court has judicially defined and
limited the term. See Ramsey, 864 S.W.2d at 328. In Ramsey’s case, the court gave
the term a limiting construction by instructing the jury it could find depravity if it found
Ramsey bound Betty or planned to kill more than one person, and had a callous
disregard for human life. The limiting construction gave adequate guidance to the
sentencer. See Battle v. Delo, 19 F.3d 1547, 1562 (8th Cir. 1994). Even if the
instruction were unconstitutionally vague, the jury’s penalty phase verdict was reliable
because the jury found several other unchallenged aggravating circumstances that
support Ramsey’s death sentence. See Sloan v. Delo, 54 F.3d 1371, 1385-86 (8th Cir.
1995) (in nonweighing state like Missouri, jury’s finding of invalid aggravating factor
does not invalidate death verdict when jury finds at least one valid aggravating factor).

       Fourth, Ramsey contends his right to confront and cross-examine witnesses
against him was violated when the trial court admitted parts of a videotaped statement
by Billy about Ramsey’s role in the murders. Police made the tape when they brought
Billy, a suspect in the murders, into the police station for questioning early in the
investigation, before Billy made a plea bargain. Billy initially denied any knowledge of
the robbery, then said someone other than Ramsey was his accomplice. After police
confronted Billy with the statements of his mother, aunt, and girlfriend saying Ramsey
and Billy committed the robbery and Ramsey had a gun, Billy gave the videotaped
statement implicating his brother. At the prosecutor’s behest, the trial court admitted
parts of the tape in rebuttal after defense counsel suggested on cross-examination that
Billy fabricated his trial testimony to save his own neck. Defense counsel had brought
out that Billy’s testimony was the product of a plea bargain and there were

                                            -4-
inconsistencies between Billy’s trial testimony and earlier statements made in his
deposition and at the time of his arrest. Although the court admitted parts of the tape,
the court instructed the jury it should not consider the tape as substantive evidence.

        We see no violation of Ramsey’s right to confront witnesses against him. “[T]he
Confrontation Clause is not violated by admitting a declarant’s out-of-court statements,
as long as the declarant is testifying as a witness and subject to full and effective cross-
examination.” California v. Green, 399 U.S. 149, 158 (1970); see McDonnell v. United
States, 472 F.2d 1153, 1155-56 (8th Cir. 1973). In Ramsey’s case, Billy testified as a
witness at trial, and Ramsey does not identify anything that prevented him from
recalling Billy and questioning him about the tape. Ramsey’s inability to cross-examine
Billy earlier when he gave the statement at the police station does not violate the
Confrontation Clause. See Green, 399 U.S. at 159 (inability to cross-examine witness
at time of out-of-court statement is insignificant if defendant can cross-examine witness
at trial). Ramsey misplaces reliance on Tome v. United States, 513 U.S. 150, 156-60
(1995) (witness’s earlier consistent out-of-court statement introduced to rebut charge
of recent fabrication or improper influence or motive is inadmissible under Federal Rule
of Evidence 801(d)(1)(B) when made before alleged fabrication, influence, or motive
came into being). The Missouri Supreme Court decided the videotaped statements were
admissible under state evidentiary law consistent with Tome, see Ramsey, 864 S.W.2d
at 329, and we cannot disturb that decision. See Cornell v. Iowa, 628 F.2d 1044, 1048
n.3 (8th Cir. 1980).

       Fifth, Ramsey asserts the prosecutor made improper arguments during the trial’s
guilt phase. Ramsey can receive no federal habeas relief based on a prosecutor’s
improper statements unless the prosecutor’s misconduct infected the entire proceeding
and rendered it fundamentally unfair in violation of due process. See Newlon v.
Armontrout, 885 F.2d 1328, 1336 (8th Cir. 1989).




                                            -5-
        Contrary to Ramsey’s view, the prosecutor did not indirectly comment on
Ramsey’s failure to testify. The challenged comments do not show the prosecutor
intended to call attention to Ramsey’s failure to testify, and we do not think the jury
would naturally and necessarily understand the comments as highlighting Ramsey’s
failure to take the stand. See United States v. Moore, 129 F.3d 989, 993 (8th Cir.
1997), cert. denied, 118 S. Ct. 1402 (1998). The evidence showed that when police
arrested Ramsey at his mother’s home on a charge unrelated to the murder, they found
a foreign coin in his pocket. Ramsey tried to persuade the police to give the coin to his
mother, but the police refused. During closing argument in the guilt phase, Ramsey’s
attorney said there was no evidence the coin found in Ramsey’s pocket belonged to the
Ledfords, even though there was evidence foreign coins were taken in the robbery. In
response, the prosecutor argued, “Roy Ramsey alone . . . knows where the coin came
from. . . . Who, by his actions, let you know not only that this coin was part of the
homicide but that he knew that by being in possession of this, he was caught. Roy
Ramsey.” (Trial Trans. at 1521-22.) Rather than commenting on Ramsey’s failure to
testify, the prosecutor pointed out that Ramsey’s actions showed his consciousness of
guilt because he knew the coin belonged to the Ledfords and could possibly tie him to
the murders. Nor did the prosecutor comment on Ramsey’s failure to testify in saying,
“The uncontradicted evidence is that Roy Ramsey and Billy knew, with certainty, that
Garnett Ledford knew Billy.” (Trial Trans. at 1462.) Comments that the state’s
evidence is uncontradicted simply refer to the clarity and strength of the state’s
evidence. See Moore, 129 F.3d at 993.

       We also reject Ramsey’s assertion that the prosecutor’s reference to Ramsey as
“Rambo” was improper. The reference was permissible argument because it was based
on trial testimony. See Pickens v. Lockhart, 4 F.3d 1446, 1453-54 (8th Cir. 1993).
When asked who got the foreign coins stolen in the robbery, Billy responded, “Rambo,
Roy.” The prosecutor then said, “You just said something. What is Mr. Ramsey’s
nickname?” Billy responded, “Rambo.” (Trial Trans. at 989.) The prosecutor then


                                          -6-
shifted to another line of questioning. The prosecutor cannot be faulted for capitalizing
on this unsolicited evidence in his closing argument.

        Sixth, Ramsey asserts parts of the prosecutor’s penalty-phase closing argument
were improper. Based on evidence that criminals become less dangerous as they age,
Ramsey argued lack of future dangerousness as a mitigating factor in sentencing. In
response, the prosecutor argued, “Roy Ramsey, Rambo, is not burning out. . . . We have
no reason to believe anything else. Roy Ramsey, while in the most secure prison in the
state, sodomized a member of our society. And that’s something I am having trouble
with. We can’t protect people in our society from Roy Ramsey.” (Trial Trans. at 1755-
56.) Ramsey contends this argument improperly contorted a mitigating factor into an
aggravating factor, injected evidence outside the record, and stated the prosecutor’s
personal opinion. We see no constitutional error. The state had presented evidence that
Ramsey committed sodomy in October 1976 “while awaiting trial” for robbing a man
in August. See Ramsey, 864 S.W.2d at 333. That the sodomy happened in prison is
a reasonable inference from the evidence. See id. Thus, the prosecutor could properly
argue Ramsey could be dangerous in prison. See United States v. Atcheson, 94 F.3d
1237, 1244 (9th Cir. 1996) (no misconduct where prosecutor argued reasonable
inferences based on record), cert. denied, 117 S. Ct. 1096 (1997). Even if the
prosecutor’s reference to his own trouble with Ramsey’s act of sodomy was improper,
there is not a reasonable probability the isolated remark affected the outcome of the
penalty phase. See Newlon, 885 F.2d at 1337-38.

         Seventh, Ramsey contends his rights to due process and a fair and impartial jury
were violated when the trial court refused his proposed voir dire questions directed at
the prospective jurors’ ability to be impartial in sentencing Ramsey. “Voir dire plays
a critical role in assuring criminal defendants that their Sixth Amendment right to an
impartial jury will be honored. Without an adequate voir dire the trial judge cannot
fulfill [the] responsibility to remove prospective jurors who may be biased and defense
counsel cannot intelligently exercise peremptory challenges.” United States v. Spaar,

                                          -7-
748 F.2d 1249, 1253 (8th Cir. 1984). Nevertheless, trial judges have broad discretion
to decide how to conduct voir dire, and they are not required to ask a question in any
particular form simply because a party requests it. See id. A trial judge’s refusal to ask
certain voir dire questions is proper when the judge’s overall examination, coupled with
the charge to the jury, adequately protects the defendant from prejudice. See id.
       Ramsey proposed the following voir dire questions:

      Could each of you consider the death penalty in this case with the
      understanding that under Missouri law you are never required to impose
      it? If Roy Ramsey is convicted of first-degree murder, are there any of
      you who feel he should get the death penalty regardless of any mitigation
      circumstances? If you are convinced beyond a reasonable doubt, that Roy
      Ramsey is guilty of first-degree murder, would the defense have to
      convince you that he should not get the death penalty? Would your views
      on the death penalty prevent or substantially impair your ability to follow
      the following instruction: You are not compelled to fix death as the
      punishment, even if you do not find the existence of one or more
      mitigating circumstances, sufficient to outweigh the aggravating
      circumstances or circumstances which you find to exist. You must
      consider all of the circumstances in deciding whether to assess and
      declare the punishment at death. Whether that is to be your final decision
      rests with you. If you find one or all of the aggravating circumstances
      exist beyond a reasonable doubt, could you still consider life without
      parole as a possible punishment? If you found aggravating circumstances
      exist beyond a reasonable doubt and that they warrant the death penalty,
      could you still consider life without parole as a possible punishment? If
      you find aggravating circumstances beyond a reasonable doubt and find
      that the mitigating circumstances do not outweigh the aggravating
      circumstances, would you still consider life without probation or parole
      as a possible punishment?

Rather than posing these questions, the trial court told the jurors, “I’m going to ask you
some questions [about] imposition of the death penalty. These questions are asked of
you in the abstract, understanding that no evidence has been presented. . . . If you were


                                           -8-
selected as a juror in this case, you must be able to vote for both of the punishments
authorized by law. My question is would you be capable of voting for a sentence of
death? Would you be capable of voting for a sentence of life without parole?” (Trial
Trans. at 578-80.) To help the attorneys exercise their peremptory challenges, the court
also asked, “If you were chosen as a juror, would you have a tendency to favor either
the death penalty, the life imprisonment penalty, or neither?” (Trial Trans. at 580.)

       The trial court’s queries were more direct and succinct than Ramsey’s proposed
questions, and addressed the crucial disqualification issue of whether the prospective
jurors would automatically vote for or against the death penalty in every case, see
Morgan v. Illinois, 504 U.S. 719, 728-29, 732 (1992). Because the trial court’s
questioning reasonably assured Ramsey of a chance to detect a potential juror’s
prejudice about the death penalty, see Spaar, 748 F.2d at 1253, Ramsey was not denied
his rights to due process and a fair trial.

       Eighth, Ramsey asserts the jury instructions improperly limited the jury’s
consideration of mitigating circumstances. Ramsey complains that the instructions
required the jury to decide whether the aggravating circumstances warranted imposition
of death before the jury could consider any mitigating circumstances. As Ramsey sees
it, the instructions improperly placed the burden on him to prove the mitigators
outweighed the aggravators before he could receive the benefit of the mitigating
circumstances. In Bolder v. Armontrout, 921 F.2d 1359, 1367 (8th Cir. 1990), we
rejected the same attack on Missouri sentencing instructions like those given in
Ramsey’s case. The Supreme Court recently approved similar capital sentencing
instructions in Buchanan v. Angelone, 118 S. Ct. 757, 761-62 (1998). The instructions
in Ramsey’s case were proper because after the jury found the existence of an
aggravating circumstance, the jury was not required to impose the death penalty even
if the jury found no mitigating evidence. See Bolder, 921 F.2d at 1367; Buchanan, 118
S. Ct. at 761-62.


                                          -9-
        Ninth, Ramsey asserts Missouri’s reasonable doubt instructions allowed the jury
to convict him based on a lower burden of proof than the Constitution requires.
Ramsey complains that the instructions defined proof “beyond a reasonable doubt” as
that leaving the jury “firmly convinced” of Ramsey’s guilt. We have already decided
we would have to go beyond existing Supreme Court precedent to find constitutional
infirmity in Missouri’s instruction charging the jury to be “firmly convinced” before
convicting a defendant. See Murray v. Delo, 34 F.3d 1367, 1382 (8th Cir. 1994).
Thus, we have held this challenge to Missouri’s reasonable doubt instruction is barred
by Teague v. Lane, 489 U.S. 288 (1989). See Murray, 34 F.3d at 1382; Reese v. Delo,
94 F.3d 1177, 1186 (8th Cir. 1996), cert. denied, 117 S. Ct. 2421 (1997). Also, Justice
Ginsburg has indicated her approval of an instruction proposed by the Federal Judicial
Center that defines proof beyond a reasonable doubt as proof leaving a juror firmly
convinced. See Victor v. Nebraska, 511 U.S. 1, 26-27 (1994) (Ginsburg, J.,
concurring).

       Tenth, Ramsey contends the trial court’s denial of his challenges for cause to
venirepersons who leaned toward the death penalty violated his rights to an impartial
jury, due process, and equal protection in violation of the Sixth, Fifth, and Fourteenth
Amendments. When the court denied Ramsey’s motion challenging prospective jurors
Atwood and Dillon for cause, Ramsey used peremptory challenges to dismiss them.
Because Ramsey has not shown the seated jury was partial, his Sixth Amendment claim
fails. See Cox v. Norris, 133 F.3d 565, 572 (8th Cir. 1997); Sloan, 54 F.3d at 1387
n.16. Loss of a peremptory challenge does not violate the constitutional right to a fair
jury. See Cox, 133 F.3d at 572.

       As for his due process claim, Ramsey must show he did not receive some right
to peremptory challenges provided for by Missouri law. See Sloan, 54 F.3d at 1387.
At the time of Ramsey’s trial, Missouri law provided that “criminal defendants are
entitled to a ‘full panel of qualified jurors before being required to make peremptory
challenges’ and [] failure to sustain a meritorious challenge for cause is prejudicial

                                         -10-
error.” Id. (quoting State v. Wacaser, 794 S.W.2d 190, 193 (Mo. 1990)). The trial
court decided the views of Atwood and Dillon would not prevent or substantially impair
their performance as jurors, and thus overruled Ramsey’s challenges for cause. See
Ramsey, 864 S.W.2d at 336. On habeas review, our role is limited to deciding whether
the record fairly supports the state court’s decision that Atwood and Dillon could be
impartial. See Sloan, 54 F.3d at 1387. We see no manifest error. See id. Atwood and
Dillon both said they were capable of voting for either the death sentence or life
imprisonment without parole before stating their tendency to lean towards the death
penalty. (Trial Trans. at 582-83, 635.) Given the trial court’s introductory statements
about aggravating and mitigating factors and the necessity of the prospective jurors’
ability to follow the instructions (Trial Trans. at 578-80, 630-31), the unequivocal
responses of Atwood and Dillon indicating they could vote for either sentence made
clear they would not impose either sentence automatically and thus were qualified to sit
as impartial jurors. See Morgan, 504 U.S. at 728-29. As a result, Ramsey received a
full panel of qualified jurors before exercising peremptory challenges, and the trial court
properly denied Ramsey’s challenges for cause. See Sloan, 54 F.3d at 1387. Ramsey
complains that the trial court did not allow him to ask Atwood and Dillon whether their
views on capital punishment would prevent or substantially impair the performance of
their duties as jurors in accordance with their instructions and their oath. (Trial Trans.
at 595); see Morgan, 504 U.S. at 728. In context, the statements of Atwood and Dillon
that they could impose either sentence fairly supports the state court’s decision that their
views would not substantially impair their performance as jurors. See Ramsey, 864
S.W.2d at 336. As we said in our discussion about Ramsey’s proposed voir dire
questions, the questions asked by the trial court were sufficient to identify unqualified
jurors. See Morgan, 504 U.S. at 728-36. No further questions were constitutionally
required. We conclude the trial court did not violate Ramsey’s right to due process.

       With respect to equal protection, Ramsey claims the court used two separate
standards for juror qualification, one to retain jurors who favored the death penalty, and


                                           -11-
another to exclude jurors who questioned the death penalty’s propriety. Contrary to
Ramsey’s claim, the record of voir dire shows the court was evenhanded. The court
asked more questions when a potential juror stated an inability to impose either life
imprisonment or death, but not when a potential juror expressed a tendency to lean
toward either sentence. The information about a prospective juror’s tendency helped
both the prosecution and the defense decide how to exercise peremptory challenges, and
Ramsey used some of his to remove Atwood and Dillon.

        In his eleventh claim, Ramsey asserts jury instructions five and seven violate due
process because the instructions confuse the elements of first-degree murder and
improperly shift the burden of proving deliberation to Ramsey. The instructions stated
that if the jury found Ramsey or his brother had killed the Ledfords by shooting, the
shooter knew his conduct was practically certain to cause death, and the shooter had
deliberated for any length of time, first-degree murder had occurred, and if the jury
found that “with the purpose of promoting or furthering the death of [the Ledfords],
[Roy Ramsey] acted alone or together with or aided or encouraged Billy Ramsey in
causing the death of [the Ledfords] and [Roy Ramsey] did so after deliberation, . . . then
[the jury would] find [Roy Ramsey] guilty . . . of murder in the first degree.” Contrary
to Ramsey’s assertion, the instruction plainly required the jury to find beyond a
reasonable doubt that Ramsey himself had deliberated, as Missouri law requires, see
State v. Ferguson, 887 S.W.2d 585, 587 (Mo. 1994). The instruction did not violate
due process. See Kilgore v. Bowersox, 124 F.3d 985, 991 (8th Cir. 1997); Thompson
v. Missouri Bd. of Probation & Parole, 39 F.3d 186, 190 (8th Cir. 1994); see also Baker
v. Leapley, 965 F.2d 657, 659 (8th Cir. 1992) (per curiam) (to warrant federal habeas
relief for state prisoner, instructional error must constitute a fundamental defect that
results in a complete miscarriage of justice or renders the defendant’s entire trial unfair).

        Last, Ramsey contends the district court should have given him permission to
raise fourteen more issues on appeal. In Ramsey’s view, the district court committed


                                           -12-
error in granting him a certificate of appealability limited to eleven issues under 28
U.S.C. § 2253 as amended by the Antiterrorism and Effective Death Penalty Act.
Although he initially requested a certificate of appealability and we remanded the
question of the certificate’s issuance to the district court, Ramsey now asserts the
district court should have given him an unlimited certificate of probable cause under the
pre-Act version of § 2253. Ramsey filed his habeas petition in December 1995 before
the Act’s April 1996 effective date, and he asserts the Act does not govern habeas
petitions filed before then. See Lindh v. Murphy, 117 S. Ct. 2059 (1997).

        Section 2253 requires a state prisoner to obtain authorization from a district or
circuit judge before appealing from the denial of a federal habeas petition. Before the
Act, § 2253 required a state prisoner to obtain a certificate of probable cause. See 28
U.S.C. § 2253 (1994). The Act amended § 2253 to require a state prisoner to obtain a
certificate of appealability. See 28 U.S.C.A. § 2253(c) (West Supp. 1998). The same
substantive standard governs issuance of the pre-Act certificate of probable cause and
the post-Act certificate of appealability. See Roberts v. Bowersox, 137 F.3d 1062,
1068 (8th Cir. 1998); Tiedeman v. Benson, 122 F.3d 518, 521 (8th Cir. 1997). Both
certificates issue only if the applicant makes a substantial showing of the denial of a
constitutional right. See Roberts, 137 F.3d at 1068; Cannon v. Johnson, 134 F.3d 683,
685 (5th Cir. 1998); see also Barefoot v. Estelle, 463 U.S. 880, 893 (1983). The post-
Act certificate of appealability requires a judge to specify which issues satisfy this
standard, see 28 U.S.C. § 2253(c)(3), and appellate review of the habeas denial is
limited to the specified issues, see Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir.
1997). The pre-Act certificate of probable cause did not require specification and
placed the entire case before the court of appeals, see Roberts, 137 F.3d at 1068, but
the court of appeals could confine the issues on appeal to those satisfying the substantial
showing standard, see Garrison v. Patterson, 391 U.S. 464, 466 (1968) (per curiam)
(court of appeals may consider the certificate of probable cause and merits questions
together; full briefing and oral argument is not required in every case in which a
certificate of probable cause is granted). Indeed, courts of appeals have been

                                          -13-
exercising this discretion for years. See Vicaretti v. Henderson, 645 F.2d 100, 101 (2d
Cir. 1980) (recognizing practice by several circuits of issuing limited certificates of
probable cause); Camillo v. Wyrick, 640 F.2d 931, 934 (8th Cir. 1981) (Eighth Circuit
confined issues in order granting a certificate of probable cause).

       As Ramsey acknowledges, we have already held the Act’s amended version of
§ 2253 applies to habeas petitioners like him, who filed their habeas petitions before the
Act’s effective date but had not yet appealed the denial of their habeas petition. See
Tiedeman, 122 F.3d at 520-21. Citing contrary cases from other circuits, Ramsey
argues Tiedeman was wrongly decided. One panel of this court is bound by the
decisions of other panels, however. See United States v. Rodamaker, 56 F.3d 898, 903
(8th Cir. 1995).

        Even if the new certificate of appealability requirement does not apply to
Ramsey’s pre-Act habeas petition, Ramsey would be no better off. The district court
would have granted Ramsey a certificate of probable cause, and although Ramsey
would have been free to choose which claims to assert on appeal, we would have
narrowed the issues for full briefing on the merits to the same eleven selected by the
district court. In our December 22, 1997 order denying Ramsey’s application to us for
an expanded certificate of appealability or certificate of probable cause, we decided
Ramsey had not made a substantial showing of the denial of a constitutional right with
respect to the fourteen rejected issues. Ramsey does not challenge our decision to limit
the issues in his appellate brief, explain why the fourteen rejected issues meet the
substantial showing standard, or point out how the district court or this court made a
mistake in concluding the fourteen issues do not warrant full briefing and oral argument
on appeal. See Kerr v. Federal Emergency Management Agency, 113 F.3d 884, 886
n.3 (8th Cir. 1997) (argument waived when not supported by specific law or facts from
record). In sum, Ramsey has not shown the rejected issues merit appeal by carrying
his burden to make a substantial showing of the denial of a constitutional right on those
issues. See Barefoot, 463 U.S. at 893.

                                          -14-
       Having considered all of Ramsey’s arguments, we affirm the district court’s
denial of Ramsey’s petition for a writ of habeas corpus.

JOHN R. GIBSON, Circuit Judge, concurs in the result and concurs in the judgment.

      A true copy.

            Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                      -15-
