                                                                  [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                     FOR THE ELEVENTH CIRCUIT           U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                          SEPTEMBER 18, 2000
                                                           THOMAS K. KAHN
                               No. 98-6882                      CLERK



                        D.C. Docket No. 94-CV-2175

JOHN W. PEOPLES, JR.,

                                                     Petitioner-Appellant,


                            versus

MICHAEL W. HALEY, Commissioner of the
Alabama Department of Corrections,
ATTORNEY GENERAL OF THE STATE OF
ALABAMA,

                                                     Respondents-Appellees,



                Appeal from the United States District Court
                   for the Northern District of Alabama

                           (September 18, 2000)

Before ANDERSON, Chief Judge, 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, 510 So. 2d 554

(Ala. Crim. App. 1986); Ex Parte Peoples, 510 So. 2d 574 (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

                                                 2
constitutionally guaranteed 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

                                                  3
       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

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, 126 F.3d 1312, 1313 (11th Cir. 1997)


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.

                                                 4
      (recognizing that Lindh v. Murphy, 521 U.S. 320, 117 S. Ct. 2059,
      2068 (1997), effectively “abrogates and supplants” that portion of
      Hunter v. United States, 101 F.3d 1565 (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.” Hardwick, 126 F.3d at 1313
      (adopting the Fifth Circuit’s conclusion in Green v. Johnson, 116 F.3d
      1115, 1120 (5th Cir. 1997), that the AEDPA was intended to codify
      the standard established in Barefoot v. Estelle, 463 U.S. 880, 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. Estelle, 463 U.S. at 893. 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.” Id.



                                          II.

      Before 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, 193 F.3d 1327, 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, 463 U.S. 880, 893, 103 S. Ct.

3383, 3394, 77 L. Ed. 2d 1090 (1983) (quoting Stewart v. Beto, 454 F.2d 268, 270


                                          5
n.2 (5th Cir. 1971), overruled in part on other grounds by Lindh v. Murphy, 521

U.S. 320, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (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, 197 F.3d 1361, 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 Lindh, 521 U.S. at 336, 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, 206 F.3d 1106, 1130 & n.58 (11th Cir. 2000). Neither Lindh nor the lower


                                            6
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, 122 F.3d

518, 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, 182 F.3d 699, 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



   2
      The law in this circuit has been confused by the Supreme Court’s decisions in Lindh v.
Murphy, 521 U.S. 320, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997), and Slack v. McDaniel, ___
U.S. ___, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000). Our first interpretation of COA
requirements under the AEDPA, in Hunter v. United States, 101 F.3d 1565, 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, 122 F.3d 935, 936 (11th Cir.) (per curiam), modified on reh’g per
curiam, 126 F.3d 1312, 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.

                                                7
certificate of appealability to proceed with their appeal”) (quoting United States v.

Kunzman, 125 F.3d 1363, 1364 n.2 (10th Cir. 1997)); Crowell v. Walsh, 151 F.3d

1050, 1052 (D.C. Cir. 1998) (same); Tejeda v. Dubois, 142 F.3d 18, 21-22 & n.4

(1st Cir. 1998) (same); Berrios v. United States, 126 F.3d 430, 431 n.2 (2d Cir.

1997) (same); United States v. Skandier, 125 F.3d 178, 179-82 (3rd Cir. 1997)

(same); Hardwick v. Singletary, 122 F.3d 935, 936 (11th Cir.) (per curiam),

modified on reh’g per curiam, 126 F.3d 1312, 1313 (11th Cir. 1997)(same);

Arredondo v. United States, 120 F.3d 639, 640 (6th Cir. 1997) (same); United

States v. Carter, 117 F.3d 262, 264 (5th Cir. 1997) (same).

         Earlier this year, the Supreme Court, in Slack v. McDaniel, __ U.S. __, 120

S. Ct. 1595, 146 L. Ed. 2d 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.

Slack, __ U.S. at __, 120 S. Ct. at 1600.3 Pursuant to Slack, it is now clear that

   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

                                                    8
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, 215 F.3d 1196 (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 Slack, 120 S. Ct. at 1607.

Id. at 1199. 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, 101 F.3d 1565, 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


         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.

                                                  9
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. Hunter, 101 F.3d at 1584. 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

thought worthy of appellate review.5 Cf. Murray v. United States, 145 F.3d 1249,

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., Hunter, 101 F.3d at 1584 (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, 114 F.3d 1083, 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


   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, 104 F.3d 82, 83 (5th Cir. 1997). The instant case is
markedly different, however, because Peoples presented not one, but twenty-six claims to the
district court.

                                                10
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, 195

F.3d 52, 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, 114

F.3d 43, 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., 105 F.3d 1063, 1076 (6th Cir. 1997), overruled in part on other

grounds by Lindh, 521 U.S. at 322-23, 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. Franklin,

215 F.3d at 1199 (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).




                                          11
      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.




                                          12
