LARRY SMITH, PETITIONER-APPELLANT,

v.

JAMES CHRANS, ET AL., DEFENDANTS-APPELLEES

PER CURIAM.

Petitioner-appellant Larry Smith, a state prisoner, petitioned the district court for a writ of habeas corpus, challenging the legality of his incarceration. Following the district court’s denial of his petition, Smith applied to the district court for a certificate of probable cause for appeal, as required by 28 U.S.C. § 2253. Attempting to limit the certificate to one of the four issues Smith raised in his petition, the district court granted the application in part and denied it in part. Smith’s appeal of the district court’s order presents a question which has occasioned a split among the circuits: whether a district court’s attempt to limit a certificate of probable cause to specific issues has an effect upon the disposition of the petitioner’s appeal. Compare Barber v. Scully, 731 F. 2d 1073 (2d Cir.1984) (district court may grant limited certificate); Vicaretti v. Henderson, 645 F. 2d 100 (2d Cir.1980) (Court of Appeals panel may grant limited certificate) with United States ex rel. Hickey v. Jeffes, 571 F. 2d 762 (3d Cir.1978) (Court of Appeals’ grant of limited certificate is improper); Houston v. Mintzes, 722 F. 2d 290 (6th Cir.1983) (district court’s grant of limited certificate is improper); Van Pilon v. Reed, 799 F. 2d 1332 (9th Cir.1986) (same).

We hold that the district court’s attempt to limit a certificate of probable cause to specific issues does not affect our disposition of the petitioner’s appeal.

A. Background

Smith’s petition for a writ of habeas corpus alleges that: 1) prosecutorial misconduct deprived him of a fair trial; 2) his sentence was unconstitutionally excessive; 3) the trial court’s failure to grant him a new trial, based upon a “split” verdict, deprived him of his right to a fair trial; and 4) the state courts’ failure to address his contentions regarding the applicability of prior precedent, his potential for rehabilitation, and the existence of mitigating circumstances on direct appeal violated his right to due process.

After the district court denied Smith’s petition for a writ of habeas corpus in its entirety, Smith applied for a certificate of probable cause pursuant to 28 U.S.C. § 2253. The district court’s order granted the certificate only as to the issue of the prosecutor’s alleged misconduct but denied the certificate with respect to the remaining three issues (as well as an issue concerning testimony admitted at sentencing raised for the first time in the application for a certificate). Thereafter, Smith filed a notice of appeal with this Court.

Since we construe Smith’s notice of appeal as requesting this court issue a certificate of probable cause, Fed.R.App.P. 22(b), we would ordinarily be called upon to evaluate each issue Smith raises in his petition for a writ of habeas corpus in order to determine whether an unlimited certificate of probable cause should issue from this Court. Before doing so in this case, however, we must determine whether or not the district court’s attempt to limit the certificate to specific issues has an effect on either our decision to grant or deny petitioner’s request that this Court issue a certificate, or on our disposition of the resulting appeal. Because we hold that the district court may not limit a certificate of probable cause to specific issues, we construe the district court’s action as a grant of an unlimited certificate.

B. Discussion

The procedure for appealing a district court’s grant or denial of a petition for a writ of habeas corpus is governed by federal statute and Fed.R.App.P. 22(b). Under the provisions of 28 U.S.C. § 2253,

An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a State court, unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause.

(Emphasis added.) 28 U.S.C. § 2253. Federal Rule of Appellate Procedure 22(b) provides:

... an appeal ... may not proceed unless a district or a circuit judge issues a certificate of probable cause. If an appeal is taken by the applicant, the district judge who rendered the judgment shall either issue a certificate of probable cause 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. If such a request is addressed to the court of appeals, it shall be deemed addressed to the judges thereof and shall be considered by a circuit judge or judges as the court .deems appropriate. If no express reqiiest for a certificate is filed, the notice of appeal shall be deemed to, constitute a request addressed to the judges of the court of appeals_

(Emphasis added.)

1. The Second Circuit Approach

In Barber v. Scully, 731 F. 2d 1073 (2d Cir.1984), the Second Circuit accorded legal effect to the district court’s limitation of a certificate of probable cause, although retaining the Court of Appeal’s authority to broaden the scope of the appeal. The court noted that the petitioner’s

other claims of error were not included in the district court’s certification of probable cause. [Citations.] Although we have authority to broaden the scope of the appeal if it is ‘just under the circumstances’ to do so, [citation], appellant’s remaining contentions are not of sufficient substance to warrant discussion. 731 F. 2d at 1073.1 In so concluding, the court relied on its earlier decision in Vicaretti v. Henderson, 645 F. 2d 100 (2d Cir.1980); the Barber court made no distinction between a limitation in a certificate of probable cause imposed by a district court, as in Barber, and one imposed by a panel of the Court of Appeals, as in Vicaretti.

In Vicaretti, the Court of Appeals upheld its occasional practice of imposing limits on certificates of probable cause. The court ruled that such limits were authoritative, though not jurisdictional, when imposed by a three-judge panel of the Court of Appeals, 645 F. 2d at 102, and that the weight to be accorded the limitation was similar to that accorded a ruling considered to be the law of the case. Id. The limitation may be broadened by the panel ruling on the merits if “just under the circumstances.” Id. In concluding that granting a limited certificate of probable cause was proper, the court acknowledged there was no explicit authority in § 2253 for its holding, but did not find the absence of such authority dispositive. Instead, the court analogized § 2253 to the Supreme Court’s “[exercise of] its discretionary authority to grant writs of certiorari to review cases in federal courts of appeal, 28 U.S.C. § 1251(1) (1976), and certain judgments of state courts, 28 U.S.C. § 1257(3) (1976),” which similarly lacks explicit issue-limiting authority. Id. at 101.

While recognizing that the standard for issuing a certificate of probable cause, a substantial showing of the denial of a federal right, differed from that involved in granting certiorari, the court was persuaded that “both practices involve a court’s sensible attempt to focus the attention of the litigants on the issues that merit review under the relevant standard.” Id. at 102.

Judge Goettell’s separate opinion questioned the analogy to the Supreme Court’s certiorari practice, but nonetheless concurred that granting a limited certificate of probable cause was proper for practical reasons: the number of serious state felony convictions which result in federal habeas petitions, the number of appeals by unsuccessful petitioners, the fact that “a court appointed attorney (paid for by the federal government) is usually assigned” where an appeal is allowed, and the resulting burden on the federal courts. Id. at 103 (Goettell, J., concurring in part, dissenting in part).

2. The Third, Sixth, and Ninth Circuit Approach

The Third Circuit in United States ex rel. Hickey v. Jeffes, 571 F. 2d 762 (3d Cir.1978), held that a panel of the Court of Appeals was not authorized to issue a limited certificate of probable cause. Following Hickey, the Sixth Circuit agreed that under § 2253,