                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 05a0858n.06
                             Filed: October 18, 2005

                                           No. 04-2552

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


DAVID BRADLEY,                                           )
                                                         )
          Petitioner-Appellant,                          )
                                                         )
v.                                                       )   On Appeal from the United States
                                                         )   District Court for the Eastern
THOMAS BIRKETT, Warden,                                  )   District of Michigan
                                                         )
          Respondent-Appellee.                           )
                                                         )
                                                         )




Before:          BOGGS, Chief Judge; and NORRIS and COOK, Circuit Judges.

                 PER CURIAM. David Bradley, a Michigan state prisoner, appeals the denial of his

petition for writ of habeas corpus by the district court. The district court granted a certificate of

appealability (“COA”) as to all of the issues raised in Bradley’s habeas petition. The State of

Michigan, representing respondent Thomas Birkett, argues that the COA was improvidently granted

and asks this court to vacate the COA and remand the case to the district court with directions that

it comply with the requirements of Slack v. McDaniel, 529 U.S. 473 (2000), and Miller-El v.

Cockrell, 537 U.S. 322 (2003). For the reasons given below, we vacate the COA and remand to the

district court so that, in determining whether and to what extent to grant a COA, it will make an

individualized assessment as to each of Bradley’s claims according to the standard set forth in 28

U.S.C. § 2253(c), Slack, and Miller-El.
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Bradley v. Birkett

       As the Supreme Court has stated, “Congress mandates that a prisoner seeking postconviction

relief under 28 U.S.C. § 2254 has no automatic right to appeal a district court’s denial or dismissal

of the petition. Instead, petitioner must first seek and obtain a COA.” Miller-El, 537 U.S. at 327.

The relevant statutory provisions are codified at 28 U.S.C. § 2253, as amended by the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”). Subsection (c) 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 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).

28 U.S.C. § 2253(c).

       The Supreme Court elaborated on the requirements of 28 U.S.C. § 2253(c) in Slack, 529 U.S.

473. It declared that the substantial showing of a constitutional right that a habeas prisoner must

make under § 2253(c) to obtain a COA “includes 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,

529 U.S. at 483-84 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). The Slack Court

held that “[w]here a district court has rejected the constitutional claims on the merits, the showing

required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable

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jurists would find the district court’s assessment of the constitutional claims debatable or wrong.”

Id. at 484. When the district court denies a habeas petition on procedural grounds without reaching

the prisoner’s underlying constitutional claim, however,

        a COA should issue when the prisoner shows, at least, that jurists of reason would
        find it debatable whether the petition states a valid claim of the denial of a
        constitutional right and that jurists of reason would find it debatable whether the
        district court was correct in its procedural ruling.

Ibid.

        The Supreme Court reiterated and elaborated on the Slack standard for meeting § 2253(c)’s

“substantial showing” requirement in Miller-El, a case in which it reversed the denial of a COA.

537 U.S. at 326-27, 335-38, 342. In Miller-El, the Court emphasized that while it reversed the

denial of a COA in that case, its holding in Slack

        should not be misconstrued as directing that a COA must always issue. Statutes such
        as AEDPA have placed more, rather than fewer, restrictions on the power of federal
        courts to grant writs of habeas corpus to state prisoners. . . . By enacting AEDPA,
        using the specific standards the Court had elaborated earlier for the threshold test,
        Congress confirmed the necessity and the requirement of differential treatment for
        those appeals deserving of attention from those that plainly do not. It follows that
        issuance of a COA must not be pro forma or a matter of course.

537 U.S. at 337. For a recent application by the Supreme Court of the Slack/Miller-El standard, see

Tennard v. Dretke, 542 U.S. 274 (2004).

        In our case, having denied Bradley’s habeas petition, the district court certified for appeal

all twelve of the issues Bradley presented in his petition. The district court provided the following

explanation:

                Although the Court’s ego tells it that all reasonable jurists would agree with
        its resolution of the issues presented by Petitioner, the Court’s experience is to the

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        contrary. Thus, the Court’s belief in the correctness of its decision should not
        insulate that decision from further review. See, e.g., Taylor v. Howes, 26 Fed. Appx.
        397, 399 (6th Cir. 2001). Because the Court is not infallible and does not believe
        that its decision should be insulated from further review, the Court finds that
        reasonable jurists could find it debatable whether Petitioner has made a “substantial
        showing of the denial of a constitutional right.” § 2253(c)(2).
                Accordingly, the Court GRANTS Petitioner a Certificate of Appealability
        pursuant to 28 U.S.C. § 2253 and certifies the following issues for appeal: . . .

The district court thus based its decision not on an analysis of whether Bradley had made his

required substantial showing of the denial of a constitutional right as to each of his various claims,

but rather on the court’s sense of its own fallibility, and its belief that “its decision should [not] be

insulated from further review.”

        In Porterfield v. Bell, 258 F.3d 484 (6th Cir. 2001), this court vacated a COA that the district

court had granted as to all issues without individualized analysis. We remanded to the district court

in order for it “to engage in the reasoned assessment of each . . . claim as required by Slack.” Id. at

487; see also id. at 485. We noted in Porterfield that both blanket grants as to all issues and blanket

denials “undermine the gate keeping function of certificates of appealability, which ideally should

separate the constitutional claims that merit the close attention of counsel and this court from those

claims that have little or no viability.” Id. at 487. We added that “because the district court is

already deeply familiar with the claims raised by petitioner, it is in a far better position from an

institutional perspective than this court to determine which claims should be certified for appeal.”

Ibid.

        This court pointed out in Porterfield that

        Under normal circumstances, considerations of judicial economy will discourage
        review of certificates of appealability: the district court will have already invested

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Bradley v. Birkett

        substantial time in the certification process; the parties may have already briefed the
        merits of the claims; and review by this court would not only duplicate the district
        court’s efforts, in capital cases such as the one sub judice, it will further delay an
        already lengthy process.

258 F.3d at 485. Because in that case the parties had not yet submitted briefs on the merits (the State

had filed a motion to dismiss a number of claims that had been certified as appealable), and because

the district court had not engaged in an individualized assessment of the claims, this court remanded.

Id. at 485.

        In Frazier v. Huffman, 343 F.3d 780 (6th Cir. 2003), like Porterfield a capital case, we faced

a blanket grant by the district court that the district court had explained as follows:

        Until such time as such precedent is submitted to me, and, is shown to be applicable
        to a case at hand, I expect that I shall, as I did in this case, grant certificates of
        appealability in capital habeas cases as a matter of routine.
        Others may view this as an abdication of responsibility; it is, rather, a manifestation
        of the possibility of my own fallibility, and concern that I may have erred. I do not
        believe that I have erred–but doubt that I have, no matter how strongly felt, is not
        certainty that I have not.

Id. at 788. We stated in Frazier that the district court’s blanket grant as explained “has hindered our

consideration of this appeal,” and declared that the district court’s “rationale is contrary to our

decision in Porterfield.” Ibid. Porterfield, we emphasized, noted that “such a blanket grant

conformed to neither the commands of 28 U.S.C. § 2253(c) . . . nor the Supreme Court’s

construction of the statute in Slack.” Ibid. This court underscored that “[t]he language of § 2253(c)

is mandatory. It was therefore error for the district court to issue a blanket certificate of

appealability without any analysis.” Ibid.




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       However, because the district court had rendered its opinion before this court’s opinion in

Porterfield, and moreover, because both parties had already briefed the merits of Frazier’s claims,

this court excused “the procedural error of the district court” and declined to remand. Frazier, 343

F.3d at 788. Nevertheless, we took the opportunity to reiterate the mandatory language of 28 U.S.C.

§ 2253(c). Id. at 788-89.

       It is clear that, as in Porterfield and Frazier, the district court here committed error. It

granted a COA as to all of Bradley’s claims without individualized analysis, explained only by an

expression of the district court’s awareness of its own fallibility, thus manifestly failing to follow

the requirements set forth in 28 U.S.C. § 2253, Slack, and Miller-El.

       We must therefore determine whether to excuse the error or vacate and remand to the district

court for a proper analysis, under 28 U.S.C. § 2253(c), Slack, and Miller-El, of the appealability of

each of Bradley’s claims. In this case, the parties have submitted briefs on the merits of Bradley’s

claims (the State, representing the warden, challenged the COA in its merits brief, rather than in an

earlier motion, and in that brief and at oral argument requested that we vacate the COA and remand).

Although this is not a capital case, a remand would still cause delay in an already lengthy process.

Thus there are significant considerations of judicial economy here. Yet those considerations

comprise only one of the factors set out in Porterfield to guide our determination whether to review

a COA. The district court did not invest substantial time in the certification process, and, as

described above, committed error by failing to analyze the appealability of each of Bradley’s claims

according to the standard mandated by statute and Supreme Court precedent.




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       We also note that we have found it necessary on a number of occasions to point out that this

district court had improperly granted a COA. In Brown v. Cason, No. 04-1696, slip op. at 2 (6th Cir.

June 13, 2005), we stated that this district court’s grant of a COA, explained by language almost

identical to that used in the instant case, did not comply with the requirements of Slack. We

commented that “the district court did not address or rule upon the merits of the six grounds for

relief asserted by Brown in his habeas corpus petition.” Ibid. We declined to remand for a Slack

analysis, however, because the statute of limitations was a plain procedural bar that was present on

the face of the petition. Ibid. In Pearson v. Jackson, No. 03-1485, slip op. at 1-2 (6th Cir. April 13,

2004), we vacated this district court’s order granting a COA and remanded to the district court in

order for it to apply the Slack standard properly. In Cummings v. Yukins, 61 Fed. App’x 188, 189-

90, 191 (6th Cir. 2003), after having already remanded once, we noted that this district court,

contrary to our ruling in Porterfield, had not addressed the petitioner’s claims individually, but we

nonetheless affirmed the district court’s judgment. In both White v. Kapture, 42 Fed. App’x 672,

673 (6th Cir. 2002), and Channels v. McLemore, 34 Fed. App’x 153, 154 (6th Cir. 2002), we drew

attention to this district court’s failure to perform the Slack analysis. Yet in each case we declined

to remand because a plain procedural bar was present on the face of the petition. White, 42 Fed.

App’x at 673; Channels, 34 Fed. App’x at 154.

       Under these circumstances, we vacate the certificate of appealability granted by the district

court in this case and remand to the district court, directing it to make a reasoned assessment of each

of Bradley’s claims as required by 28 U.S.C. § 2553, Slack, Miller-El, Porterfield, and Frazier. We




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expect the district court to comply fully with the prescriptions established by statute, Supreme Court

precedent, and our own precedent.




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