Lambright

Concurring in Part:

I concur with the majority’s opinion that we should re-examine the general Certificate of Probable Cause previously issued by this court, and, applying the AEDPA consistent with Slack v. McDaniel, — U.S. —, 120 S.Ct. 1595 , 146 L.Ed.2d 542 (2000), determine what specific issues the petitioners may appeal. I do not agree, however, that we should engage in the discussions on which the majority embarks as support for the issuance of the Certificate of Appealability (COA) as to some issues and its denial as to others. To do so has the flavor of pre-judging the case before it has been argued-or, in the, present case, reargued. That reargument is set for August 17, 2000. Discussion of the merits of the parties’ arguments set forth in their briefs should await consideration of those arguments following oral argument and such post-argument proceedings as may be appropriate.

I also do not agree that, to the extent the majority opinion may suggest it, the AEDPA has made it possible for habeas petitioners to raise meritless issues on appeal. The test is the test set forth in Slack . That test provides that a court should issue a COA if the petitioner shows “that jurists…

Opinion by Judge FERGUSON; Partial Concurrence by Judge THOMPSON.

Joe Leonard Lambright (“Lambright”) and Robert Douglas Smith (“Smith”) appeal the district court’s denial of their habeas corpus petitions seeking relief from their state convictions and death sentences. 1 The petitioners both filed notices of appeal and sought a certificate of appealability from the district court after the effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). The district court denied them a certificate of probable cause (“CPC”) and, in the alternative, a certificate of appealability (“COA”). We subsequently granted a CPC, concluding that their appeal raised at least one issue as to which they had made “a substantial showing of the denial of a federal right.” Barefoot v. Estelle, 463 U.S. 880, 893 , 103 S.Ct. 3383 , 77 L.Ed.2d 1090 (1983) (internal quotation marks omitted).

Our determination that the petitioners needed a CPC, rather than a COA, to proceed with their appeal was incorrect. The Supreme Court recently held that “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…