## The Hon. Paul A. Magnuson, Chief Judge, United States District Court for the 1 

## District of Minnesota, adopting the report and recommendation of The Hon. Jonathan G. Lebedoff, United States Magistrate Judge. United States Court of Appeals 

### FOR THE EIGHTH CIRCUIT

_____________ No. 96-3977MN

_____________ John R. Tiedeman, *
* Appellant, *
* On Appeal from the United
v. * States District Court
* for the District of
* Minnesota. Dennis Benson, Warden, * State of Minnesota, *
* Appellee. *

___________ Submitted: May 21, 1997 Filed: August 6, 1997

___________ Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN a nd HANSEN, Circuit Judges.

___________ RICHARD S. ARNOLD, Chief Judge.
John R. Tiedeman appeals from an order of the Distri ct Court denying 1 his petition for a writ of habeas corpus. Tiede man's petition attacks his conviction in a Minne sota state court of kidnapping with intent to commit great bodily harm or to

## Tiedema n actually applied for a certificate of probable cause. However, th e 2 

## Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has amended the law to read "certificate of appealability" instead of "certificate of probable cause. " Therefore, for the sake of clarity, we will refer to "certificates of appealability."
-2- terroriz e the victim. He was convicted by a jury and sentenced to 12 8 months in prison, and the conviction was affirme d on appeal. The District Court denied Tiedeman's habeas petition without a hearing, but granted his application for a certificate of appealability. 2

We hold, among other things, that district judges have power, under the new Antiterrorism and Effective Death Penalt y Act of 1996, Pub. L. No. 104-132 , 110 Stat. 1214, to issue certificates of appealability. Th e certificate in this case, however, was defective , because it did not state the issue or issues that the District Court found substantial. W e therefore treat Tiedeman's notice of appeal as an application to the judge s of this Court for a certificate of appealability. We hold that Tiedeman has not made a substantial showing of the denial of any federa l constitutional right, and we therefore deny his application.

I.
Tiedeman was involved in a volatile, on-and-off relationship wi th the victim, Tammy Miller, for at least a year before the events giving rise to the charged offense in this case. On May 7, 1994, Tiedeman and Miller wer e involved in an argument at Tiedeman's trailer ho me, where they were living together. The police were called, and Tiedeman was arrested -- apparently
on an outs tanding warrant for parking tickets -- and removed from th e premises. By the time Tiedeman was released from jail a few days later, Miller, f or her own safety, had moved out of the trailer and into th e apartment of a former co-worker, Kent Pengelly.

## -3- Tiedeman and Miller got together on several occasions during th e week after Tiedeman's May 7th arrest, and Miller spent one night at Tiedeman's trailer. However, on Friday evening of that wee k, Tiedeman and Miller got into another argument at the trailer, and Miller went back to Pengelly's apartment. Tiedeman believed that Miller had le ft with his tattooing guns and went to Pengelly's apartment to retrieve them. Tiedeman called th e police to enlist their help, but they told him t hey could not help him and ordered him to leave the area. Tiedeman left and called Pengelly from a pay phone, but Pengelly would not put Miller on the phone. Tiedeman asked Pengelly to have Miller call him at a nearby restaurant.

At a bout 6 a.m. on May 14, Miller telephoned Tiedeman at th e restaurant. Miller told Tiedeman that she did not have his tattoo guns, but she agreed that if he came to Pengelly's apa rtment she would repay him ten dolla rs that she owed him. When Tiedeman and his two acquaintance s arrived at the apartment, Miller came out to their car, barefoot and in he r pajamas, and gave petitioner the money. As she started to return to her apartment, Tiedeman got out of the car, picked h er up, put her in the back seat with him, and told the driver to go.
They headed back towards Tiedeman's trailer, and Pengelly called the police. Miller testi fied that as they drove, Tiedeman threatened to kill her and s aid she would soon see her grandfather, who had recently died

. She also testified that he mentioned a former girlfriend whom he claimed he had put in the hos pital with several broken bones. The police stopped the car, and when Miller got out of the car she was crying and very upset. She was extremely afraid. Tiedeman told the police that he had a "buc k knife" in a sheath. Tiedeman was arrested, and the police took his knife as a security precaution.

## -4- II.
After a jury trial, Tiedeman was convicted of kidnapping. Tied eman's convictionand sentence were affirmed on appeal, and Tiedeman's petition for review before the Minnesota Supreme Court was denied. Tiedeman then file d a petition for writ of habeas corpus, which the District Cour t deni ed. The District Judge did, however, grant him a certificate o f appealability pursuant to the Antiterrorism and Effective Death Penalty Ac t of 1996 ("AEDPA"). The AEDPA became effective on April 24, 1996. Tiedema n requested a certificate of appealability from th e District Court on August 28, 1996, and the District Court granted this request.

In itially, Tiedeman argues that the AEDPA does not apply to thi s
case. Such an application, he says, would be retroactive, because hi s petition f or habeas corpus was filed in the District Court before th e enactment of AEDPA. We disagree. Whatever changes AEDPA has made wit h respect to appeals by habeas corpus petitioners are procedural only. The notice of appeal in t his case, together with Tiedeman's application for a certificate of appeal ability, was filed after the enactment of AEDPA. We recognize that the Supreme Court, in Lindh v. Mu rphy , 117 S. Ct. ____ , 65 U.S.L. We ek 4557 (U.S., June 23, 1997) (No. 96-6298), has held that th e amendments made by AEDPA to Chapter 153 of Title 28 (including the parts of AEDPAthat are at issue in this case), generally speaking, ar e prospective only. Th e particular provision of the law at issue in Lindh , however, had to do with the substantive standards for review of state-cour t judgments by habeas courts. In stating its holding at the end of it s opinion, the Court sa id that "the new provisions of Chapter 153 generally apply only to cases f iled after the Act became effective." 117 S. Ct. at

____, 6 5 U.S.L. Week at 4561 (emphasis ours). The parties to this cas e agree that the new provisions with respect to certificates of appealabilit y made no substantive change in the standards by which applications for such certificates are gove rned. Moreover, we can think of no reason why a new provision exclusively directed towards appeal procedures would depend for its effective date on the filing of a case in a trial court, instead of on the filing of a

## -5-

notice of appeal or similar document. Accordingly, we hold that AEDPA doe s applyto the certificate-of-appealability issues presented in this case.

Section 102 of the AEDPA amended 28 U.S.C. § 2253 so that it no w reads, in pertinent part:

(c)(1) Unless a circuit justice or ju dge issues
a cert ificate of appealability, an appeal may no t be taken to the court of appeals from --
(A) the final order in a habeas corpu s pr oceeding in which the detention complaine d of arises out of process issued by a Stat e Court; or
(B) the final order in a proceeding unde r section 2255.
(2) A certificate of appealability may issue u nder para graph(1) only if the applicant has made a substantial showing of the denial of a constitutional right.
(3) Th e certificate of appealability unde r par agraph(1) shall indicate which specific issu e or issues satisfy the showi ng required by paragraph (2).

The other relevant provision of AEDPA is Section 103, which amended Fed. R. App. P. 22(b) to read as follows:

(b) CERTIFICATE OF APPEALABILITY. -- In a hab eas corpus proceeding in which the detentio n complained of arises out of process issued by a State court, an appeal by the applicant for th e writ may not proceed unless a district or a circuit judg e issues a certificate of appealabilit y pursuant to section 2253(c) of title 28, United

## -6- States Code. If an appeal is taken by th e applicant, the district judge who rendered th e judgment shall either issue a certificate o f ap pealabilityor state the reasons why such a certif icate should not issue. The certificate o r the st atement shall be forwarded to the court o f appeals with the notice of appeal and the file o f the proceedings in the district court. If th e district judge has denied the certificate, th e applicant for the writ may then request issuance of the certificate by a circuit judge. If such a reques t is addressed to the court of appeals, i t shall be deemed addressed t o the judges thereof and shall be considered by a ci rcuit judge or judges as the court deems appropriate . If no express request for a certificate is filed, the notice of appea l shall be deemed to constitute a request addresse d to th e judges of the court of appeals. If a n appeal is taken by a State or its representative, a certificate of appealability is not required.

The problem is apparent. Section 103 of AEDPA clearly leave s district courts and district judges still in the picture with respect to certifi cates of appealability. Section 102, on the other hand, coul d reasonablybe read to vest power over applications for certificates o f appealability exclusi vely in appellate judges. The question, in the end, comes down to the mea ning of the phrase "a circuit justice or judge." If "circuit" modifies "judge" as well as "justice," then Section 102 of AEDPA appear s to take district judges out of the loop. The difficulty, o f course, is that this interpretation, though perhaps what some members of Congress subjectively intended, renders nugatory Section 103 of AEDPA.
This issue has now been decided by a number of courts of appeal s, all of which have held that the new Fed. R. App. P. 22(b) must be given it s plai nmeaning, and that "judge" in Section 102 must include distric t judges. We find especially persuasive Judge Carnes's able opinion i n Hunter v. United Stat es , 101 F.3d 1565 (11th Cir. 1996) (en banc). Every other circuit that has addressed the issue has held the same way. See

## -7-

Lozad a v. United States , 107 F.3d 1011, 1014-16 (2d Cir. 1997); Unite d States v. Eyer , 113 F .3d 470, 472-74 (3d Cir. 1997); Else v. Johnson , 104 F.3d 82, 83 (5th Cir. 1997); Lyons v. Ohio Adult Parole Authority , 105 F.3 d 1063, 1068-73 (6th Cir.), cert. denied , 117 S. Ct. 1724 (1997); Unite d States v. Asrar , 108 F.3d 217, 218 (9th Cir. 199 7), amended , 116 F.3d 1268 (9th Cir. 1997); Houchin v. Zavaras , 107 F.3d 1465, 1468-69 (10th Cir

. 1997); see also 1st Cir. R. 22.1(b) (Interim Rule); 7th Cir. R. 22.1(b). Thus, we agree with Hunter that under the AEDPA district courts possess th e authority to issue certificates of appealability under Section 2253(c) and Fed. R. App. P. 22(b).

III.

In this c ase, the District Court issued a certificate but failed to follow Section 2253(c)(3), which requires that the certificate "shal l ind icate which specific issue or issues satisfy the showing required by paragra ph(2)." Consequently, the certificate issued in this case i s defective on its face. It does not specify any issue or issues wit h respect to which the applicant has made a substantial showing of the denia l of a constitutional right. We therefore vacate the certificate. Under th e previous law, when we were dealing with certific ates of probable cause, we occasionallyvacated certificates, see Kramer v. Kemna , 21 F.3d 305, 307 (8th Cir. 1994), and we believe that this power is retained under the new law.
Normally, a certificate of appealability granted by a district judge, if regular on its face and not procedurally defe ctive, would mean that the appeal would proceed in this Court in the ordina ry course. If we believed that the issues were without substance, we would simply summarily affirm the ju dgment, instead of taking the intermediate and wholly unnecessar y step of vacating the certificate of appealability. In addition, in some instances it might make sense (as it did to the Court in Hunter ) to remand
a ca se to a district judge with the request that he or she specify th e issue or issues on which the certificate of appealability had been granted

. The present case, how ever, has been fully briefed, and we have heard oral argument on all issues,

## -8-

including the merits. Thus, we are fully informed about the merits, and it would make no sens e to go through the unnecessary step of remanding to the District Court wi th the request that an issue or issues be specified, when we already know, having fully considered the case, what we think the result ought to be.

Con sequently, we will treat this case as if no certificate o f appealability had bee n granted by the District Court. In that event, the
no tice of appeal is treated as an application for certificate o f appealability addressed to the judges of this Court. We hold that Tiedema n has not made a substantial showing of the denial of a constitutional right , and we therefore deny the certificate.

Ti edemanargues that the state failed to disclose materia l exculpatoryevidence, permitted Miller to testify falsely, and exploited her false testimony in argument, all in violation of his right to du e process of law. Tiedeman also argues that the trial judge imposed a 40- month upward departure in his sentence in violation of his due proces s rights.
First, Tiedeman alleges that the prosecutor had access to, but failed to disclose, a police report from the May 7 inci dent which Tiedeman argues would show he was arrested for traffic warrants and not assault. Since th e trial record is devoid of a discovery-violation allegation by Tiedeman, it is unkno wn whether an actual May 7 police report existed and wha t inform ationit may have included. It is also unclear whether it wa s available to the pros ecutor or Tiedeman. Moreover, since this allegation
was not raised in state court, the issue is procedurally barred. Se e Buckley v. Lockhart , 892 F.2d 715, 718 (8th Cir. 1989), cert. denied , 497 U.S. 1006 (1990).

Sec ond, Tiedeman argues that the prosecutor permitted Miller t o testify falsely that she called the police on May 7 and that Tiedeman was arrested for assault. The prosecutor also commented on this evidence in her closing argument. While it appears that a third party, and not Miller , called the police on May 7, it is clear that the third

## -9-

party called the poli ce because Tiedeman and Miller were fighting. It is irrelevant that a thi rd party called the police instead of Miller. Also, Tiedeman claims he wa s arrested for traffic warrants and not for assault. Tiedemanhad the opportunity to cross-examine Miller, to object to he r testimony, or to call his own witnesses, none of which he did. Moreover, the jury did ultimately hear that he was arrested for unpaid fines

. Finally, the record includes Tiedeman's criminal record, which contains tw o pas t convictions for the assault of his former girlfriend. We do no t believe that Miller's testimony regarding the May 7 arrest rises to th e level of a denial of due process.

Fi nally, we do not believe that the 40-month upward departure i n senten ce violated Tiedeman's due-process rights. The trial court foun d that there were compelling circumstances in this case to justify an upward depa rture of 40 months. If this was error at all, which we doubt, th e error is one of state law only, not cognizable on habeas.

Tiedem anhas not made a substantial showing of the denial of an y federa l constitutional right. His application for a certificate o f appealability is denied.

It is so ordered.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.