## 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 th e brothers th ere 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-2-

videocassette recorder, an d foreign coins, and Ramsey killed the Ledfords by shooting each of them a

t 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 twentyfi ve-year sentence. A Missouri jury convicted Ramsey of first-degree murder an d sentenced him to death. The Missouri Supreme Court affirmed Ramsey’s convictio n and sentence on direct appeal. See State v. Ramsey , 86 4 S.W.2d 320 (Mo. 1993), cert. denied , 511 U.S. 1078 (1994).

Ramsey f iled this federal habeas petition in December 1995. A year later, th e distri ct court denied Ramsey’s petition. Seeking permission to appeal twenty-fiv e 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 certif icate on fourteen others. Ramsey then sought an expanded certificate o f appealability or certificate of probable cause from us. We denied Ramsey’s request and thus limit ed the issues to only those that satisfied the standard for granting eithe r certi ficate--the same eleven identified by the district court. We turn initially to th e eleven issues certified for appeal.

Ra msey first asserts he was denied effective assistance of counsel and du e process bec ause his trial attorney had a conflict of interest. During the hearing o n Rams ey’s motion for a new trial, the prosecutor brought the court’s attention to a newsp aper article that spoke of letters written to Ramsey from Billy, whose judgment in accordan ce with his plea agreement could still be set aside. In the letters, Bill y apologized for giving false testimony at Ramsey’s trial. The trial court asked Ramsey’s
att orney to produce the letters, and the attorney refused, citing a conflict of interest

. Ram sey 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-3-

public defender from the district 48 office (Trial Trans. at 1852) sou ght to withdraw, but the court denied the motion. Although the court doubted a conflict existed, the cour t obtained a different Missouri public defe nder from the district 16 office (Trial Trans. at 1852) to ad vise Ramsey on the limited issue of whether to produce the letters at th e hear ing on the motion for a new trial. Ramsey decided not to produce the letters

. Ram sey contends his trial attorney’s posttrial conflict carries over to all the Missour i public defender’s offices, and thus the court should have appointed an attorney i n private practice to advise him.

To prevail on his claim, Ramsey must show both an actual confl ict of interest and an adverse effect on his attorney’s performance. See Nave v. De lo , 62 F.3d 1024, 1034 (8th Cir. 1995), cert. denied , 517 U.S. 1214 (1996). Even if Ramsey’s trial attorney had a conflic t 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 statutoril y created relationship between the offic es. See id. at 1034-35. Besides, Ramsey has not shown any adverse effect from the presumed advice not to produce the lette rs at the new trial hearing. Ramsey’s ineff ective 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 performa nce, 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 revie w of his death sentence on direct appeal under Mo. Rev. Stat. § 565.035. Contrary t o Ramse y’s assertions, Missouri’s proportionality review does not violate the Eight h 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 Missour i Supreme Co urt 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.-4-

Third, Ramsey contends his death sentence is based on an invalid aggravatin g circum stance: that the homicide was “outrageously or wantonly vile, horrible o r inhuman in that it involved torture or depravity of mind.” According to Ramsey, this aggrav ating 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 el igible 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 judic ially defined and limited the ter

m. See Ramsey , 864 S.W.2d at 328. In Ramsey’s case, the court gave the term a limiting construction by in structing the jury it could find depravity if it found Ramsey b ound Betty or planned to kill more than one person, and had a callou s disregard for human life. The limiting construction gave adequate guidance to th e sentencer. Se e Battle v. Delo , 19 F.3d 1547, 1562 (8th Cir. 1994). Even if th e instruction were unconstit

utionally vague, the jury’s penalty phase verdict was reliable because the jury found several other unchallenged aggravating circumstances tha t support Ramsey’s death sentence. S ee Sloan v. Delo , 54 F.3d 1371, 1385-86 (8th Cir. 199 5) (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 witnesse s 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 s uspect in the murders, into the police station for questioning early in th e investigation, before Billy made a plea bargai n. Billy initially denied any knowledge of the robbery, then said someone other than Ramsey was his accomplice. After polic e confronted Billy w ith the statements of his mother, aunt, and girlfriend saying Ramsey and Billy committed the robbery and Ramsey had a gun, Billy gave the videotape d
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 t

estimony to save his own neck. Defense counsel had brought out that Billy’s testimony was the product of a plea bargain and there were-5-

inconsistencies between Billy’s trial testimony and earlier statements made in hi s depositio n 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 admi tting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective crossexamination.” California v. Green , 399 U.S. 149, 158 (1970); see McDonnell v. United States , 472 F.2d 115 3, 1155-56 (8th Cir. 1973). In Ramsey’s case, Billy testified as a witn ess at trial, and Ramsey does not identify anything that prevented him fro m 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 th e Confrontation Clause. See Green , 399 U.S. at 159 (inability to cross-examine witness at time of out-of-court statement is insignific ant if defendant can cross-examine witness
at t rial). 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 s tatements were admissible under state evidentiary l aw consistent with Tome , see Ramsey , 864 S.W.2d at 329, and we cannot disturb that decisi on. See Cornell v. Iowa , 628 F.2d 1044, 1048 n.3 (8th Cir. 1980).

Fifth, Ramsey asserts the prosecut or made improper arguments during the trial’s gui lt phase. Ramsey can receive no federal habeas relief based on a prosecutor’ s improper statements unle ss 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).-6-

Contrar y to Ramsey’s view, the prosecutor did not indirectly comment o n Ramsey’s fa ilure to testify. The challenged comments do not show the prosecuto r inten ded to call attention to Ramsey’s failure to testify, and we do not think the jur y would n aturally and necessarily understand the comments as highlighting Ramsey’ s failure to ta ke 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 polic e arrested Ramsey at his mo ther’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

m o ther, 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 tho ugh there was evidence foreign coins were taken in the robbery. In respon se, 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 th e homicide but that he knew that by being in possession of this, he was caught. Ro y Ramsey.” (Trial Trans. at

1521-22.) Rather than commenting on Ramsey’s failure to testify, t he 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 uncontradict ed evidence is that Roy Ramsey and Billy knew, with certainty, that Garnett Ledf

ord knew Billy.” (Trial Trans. at 1462.) Comments that the state’ s evi dence 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 argume nt because it was based

on trial te stimony. See Pickens v. Lockhart , 4 F.3d 1446, 1453-54 (8th Cir. 1993)

. When asked who got the foreign coins stole n 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-7-

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

Sixth, Ra msey asserts parts of the prosecutor’s penalty-phase closing argument were impro per. Based on evidence that criminals become less dangerous as they age, Ramsey argued lack of future dangerousness as a mitigating factor in sentencing. I n response, the prosecutor argued, “Roy Ramsey, Rambo, is not burning out. . . . We have no reason to believe anything else. Roy Rams ey, 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 Ro y Ramsey.” (Trial Trans. at 1755- 56.) Ramsey contends this argument improperly contorted a mitigating factor into an aggrava ting factor, injected evidence outside the record, and stated the prosecutor’ s personal opinion. We see no constitutional error. The state had pre sented evidence that Ra msey 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 evi dence. 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 reasonabl e inferences based on record), cert. denied , 117 S. Ct. 1096 (1997). Even if th e prosecutor’s reference to hi s own trouble with Ramsey’s act of sodomy was improper, th ere is not a reasonable probability the isolated remark affected the outcome of th e penalty phase. See Newlon , 885 F.2d at 1337-38.

Seventh, Ramsey contends his rig hts to due process and a fair and impartial jury

wer e 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 critic al role in assuring criminal defendants that their Sixth Amendment right to a n impar tial jury will be honored. Without an adequate voir dire the trial judge canno t fulfill [the] responsibility to remove prospective jurors who may be biased and defense

coun sel cannot intelligently exercise peremptory challenges.” United States v. Spaar ,-8-

748 F.2d 1249, 1253 (8th Cir. 198 4). 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 ju dge’s refusal to ask certain voir dire questions is proper when the judge’s ov erall 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 th e understand ing that under Missouri law you are never required to impose it ? If Roy Ramsey is convicted of first-degree murder, are there any o f you who feel he should get the d eath penalty regardless of any mitigation circumstances? If you are convinced beyond a reasonable doubt, that Roy Ramse y is guilty of first-degree murder, would the defense have t o 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 foll owing instruction: You are not compelled to fix death as th e punishmen t, even if you do not find the existence of one or mor e mi tigating circumstances, sufficient to outweigh the aggravatin g circumstances or circumstances which you find to exist. You mus t consider all of the circumstances in deciding whether to assess an d declare the punishment at death. Whether that is to be your final decision rests with y ou. If you find one or all of the aggravating circumstance s exist beyond a reasonable doubt, could you still consider life withou t parole as a possible punishment? If you fou nd aggravating circumstances exist beyond a re asonable doubt and that they warrant the death penalty,
cou ld you still consider life without parole as a possible punishment? If you find aggravating circumstances beyond a reasonable doubt and find th at the mitigating circumstances do not outweigh the aggravatin g circumstances, would you still consider life without probation or parole as a possible punishment? Rather than posing these questions, the trial court told the j urors, “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 b een presented. . . . If you were-9-

se lected as a juror in this case, you must be able to vote for both of the punishment s 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 challen ges, the court also asked, “If yo u 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 questi ons, and addressed the crucial disqualification issue of whether the prospective juror s would automatically vote for or against the death penalty in every case, se e Morgan v. Illinois , 504 U.S. 719, 728-29, 732 (1992). Because the trial court’ s quest ioning reasonably assured Ramsey of a chance to detect a potential juror’ s prejudice about the death penalty, see Spaar , 748 F.2d at 1253, Rams ey was not denied his rights to due process and a fair trial.

Eighth, Ramsey asserts the jury instructions improperly limited the jury’ s
con sideration of mitigating circumstances. Ramsey complains that the instruction s required the jury to decide whether the aggravating circumstances war ranted imposition of death before the jury could consider any mi tigating circumstances. As Ramsey sees it, t he instructions improperly placed the burden on him to prove the mitigator s outweighed the aggravators before he could receive the benefit of the mitigatin g circums tances. In Bolder v. Armontrout , 921 F.2d 1359, 1367 (8th Cir. 1990), w e rejecte d the same attack on Missouri sentencing instructions like those given i n Ramsey’s case. The Supreme Court recently approved similar capital sentencin g instructions in Buchanan v. Angelone , 118 S. Ct. 757, 7 61-62 (1998). The instructions in Ramsey ’s case were proper because after the jury found the existence of a n aggravating circumstance, the jury was not required to impose the death penalty even if the jury found no mitigating evidence. See Bolder , 92 1 F.2d at 1367; Buchanan , 118 S. Ct. at 761-62.-10-

Ninth, Ramsey asserts Missouri’s reasonable doubt inst ructions allowed the jury to convict h im 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 t

he 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” befor e convicting a defendant. See Murray v. Delo , 34 F.3d 1367, 1382 (8th Cir. 1994)

. Thus, we have held this challeng e to Missouri’s reasonable doubt instruction is barred by Teague v. Lane , 489 U.S. 288 (1989). See Murray , 34 F.3d at 138 2; Reese v. Delo , 94 F.3d 1177, 1186 (8th Cir. 1996), cert. denied , 117 S. Ct. 2421 (1 997). 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 firml y convince d. See Victor v. Nebraska , 511 U.S. 1, 26-27 (1994) (Ginsburg, J. , concurring).

Ten th, Ramsey contends the trial court’s denial of his challenges for cause t o veni repersons who leaned toward the death penalty violated his rights to an impartial jury, due pr ocess, and equal protection in violation of the Sixth, Fifth, and Fourteenth Amendments. When the court denied Ramsey’s motion challengin g 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 Amen dment claim fails

. See Cox v. Norris , 133 F.3d 565, 572 (8th Cir. 1997); Sloan , 54 F.3d at 138 7 n.16. Loss of a perempto ry 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 ar e entitled to a ‘full panel of qualified jurors before being required to make peremptor y challenges’ and [] failure to sustain a meritorious challenge for cause is prejudicial-11-

error.” Id. (quoting State v. Wacaser , 794 S.W.2d 190, 193 (Mo. 1990)). The tria l court decided the views of Atwood and Dillon would not prevent or substantially impair their perf ormance as jurors, and thus overruled Ramsey’s challenges for cause. Se e Ramsey , 864 S.W.2d at 336. On habeas review, our rol e is limited to deciding whether the record f airly supports the state court’s decision that Atwood and Dillon could b e impartial. See Sloan , 54 F.3d at 1387. We see no manifest error. See id. Atwood and Dillon both s aid they were capable of voting for either the death sentence or lif e impris onment

without parole before stating their tendency to lean towards the deat h penalty. (Trial Trans. at 582-83, 635.) Gi ven 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 unequivoca l respon ses of Atwood and Dillon indicating they could vote for either sentence mad e clear they would not impose either sentence automa tically and thus were qualified to sit as impar tial 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 allo w him to ask Atwood and Dillon whether their views on cap ital punishment would prevent or substantially impair the performance of their duties as juro rs 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 vi ews would not substantially impair their performance as jurors. See Ramsey , 86 4 S.W.2d at 336. As we said in our discussion about Ramsey’s proposed voir dir e questi ons, 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 constitutionall y 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 separat e standards for juror qualification, one to retain juror s who favored the death penalty, and-12-

anot her to exclude jurors who questioned the death penalty’s propriety. Contrary t o Ramsey’s claim, the record of voir dire shows the court was evenhanded. The cour t asked more q uestions when a potential juror stated an inability to impose either lif e impriso nment

or death, but not when a potential juror expressed a tendency to lea n toward ei ther 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 instr uctions five and seven violate due process because the instructions confuse the elements of first-degree murder an d improperly shift the burden of proving deliberation to Ramsey. The instructions stated that i f the jury found Ramsey or his brother had killed the Ledfords by shooting, th e shoote r knew his conduct was practically certain to cause death, and the shooter ha d delibe rated for any length of time, first-degree murder had occurred, and if the jur y foun d that “with the purpose of promoting or furthering the death of [the Ledfords] , [Ro y Ramsey] acted alone or together with or aided or encouraged Billy Ramsey i n causing the death of [the Ledfords] and [Roy Ramsey] did so after del iberation, . . . then [the jury would] find [Roy Ram sey] guilty . . . of murder in the first degree.” Contrary
to Ramsey ’s assertion, the instruction plainly required the jury to find beyond a
reasona ble doubt that Ramsey himself had deliberated, as Missouri law requires, se e State v. Ferguson , 887 S.W.2d 585, 587 (Mo. 1994). The instruction did not violat e due process. See Kilgore v. Bowerso x , 124 F.3d 985, 991 (8th Cir. 1997); Thompson v. Missouri Bd. of Probation & Parole , 39 F.3d 186, 190 (8th Cir. 199 4); see also Baker v. Leapl ey , 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 tha t results in a complete miscarriage of justice or renders the defendan t’s entire trial unfair).

Last, Ramsey contends the district court should have given him permission t o raise fourtee n more issues on appeal. In Ramsey’s view, the district court committed-13-

error in granting him a certificate of appealability limited to eleven issues under 2 8 U.S.C. § 2253 as amended by the Antiterrorism and Effective Death Penalty Act

. Althou gh he initially requested a certificate of appealability and we remanded th e questi on of the certificate’s issuance to the district court, Ramsey now asserts th e district court should have given him an unlimited cert ificate 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 habea s 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 app ealing from the denial of a federal habeas petition. Before the Act, § 2 253 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 appealabil ity. See 28 U.S.C.A. § 2253(c) (West Supp. 1998). The same substantive s tandard 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 certifi cates issue only if the applicant makes a substantial showing of the denial of a constitutional right. See Roberts , 13 7 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 postAct certificate of appealability requires a judge to specify which issues satisfy thi s standard, see 28 U.S.C. § 2253(c)(3), and appellate review of the habeas denial i s 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 an d 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 sati sfying the substantial showi ng standard, see Garrison v. Patterson , 391 U.S. 464, 466 (1968) (per curiam ) (cou rt of appeals may consider the certificate of probable cause and merits question s toge ther; 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-14-

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 o f probable cause); Camillo v. Wy rick , 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 e ffective date but had not yet appealed the denial of their habeas petition. Se e Tiedema n , 122 F.3d at 520-21. Citing contrary cases from other circuits, Ramse y argues Tiedeman was wrongly decided. One panel of this court is bound by th e decisions of other panels, however. See United State s v. Rodamaker , 56 F.3d 898, 903 (8th Cir. 1995).

Even if the new certificate of appealability requirement does not apply t o 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 Ramse y would hav e been free to choose which claims to assert on appeal, we would hav e narrowed the i ssues for full briefing on the merits to the same eleven selected by th e district court. In our December 2 2, 1997 order denying Ramsey’s application to us for

an expanded certificate of appealability or certificate of probable cause, we decide d Ramsey had not made a substantial showing of the denial of a constitutional right with respect to the fourteen rejected issues. Ramsey do es not challenge our decision to limit the issues in his appellate brief, explain why the fourteen rejected issues meet th e substantia l 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, 88 6 n.3 (8th Cir. 1997) (argument waived whe n 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 o f the denial of a constitutional right on those issues. See Barefoot , 463 U.S. at 893.-15-

Having co nsidered 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.