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 and HANSEN, Circuit Judges.

___________

RICHARD S. ARNOLD, Chief Judge.

John R. Tiedeman appeals from an order of the District Court denying 1

his petition for a writ of habeas corpus. Tiedeman's petition attacks his

conviction in a Minnesota state court of kidnapping with intent to commit

great bodily harm or to
Tiedeman actually applied for a certificate of probable cause. However, the

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."

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terrorize the victim. He was convicted by a jury and sentenced to 128

months in prison, and the conviction was affirmed 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 Penalty Act of 1996, Pub. L. No.

104-132, 110 Stat. 1214, to issue certificates of appealability. The

certificate in this case, however, was defective, because it did not state

the issue or issues that the District Court found substantial. We

therefore treat Tiedeman's notice of appeal as an application to the judges

of this Court for a certificate of appealability. We hold that Tiedeman

has not made a substantial showing of the denial of any federal

constitutional right, and we therefore deny his application. 

I.

Tiedeman was involved in a volatile, on-and-off relationship with 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 were

involved in an argument at Tiedeman's trailer home, where they were living

together. The police were called, and Tiedeman was arrested -- apparently

on an outstanding warrant for parking tickets -- and removed from the

premises. By the time Tiedeman was released from jail a few days later,

Miller, for her own safety, had moved out of the trailer and into the

apartment of a former co-worker, Kent Pengelly.
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Tiedeman and Miller got together on several occasions during the week

after Tiedeman's May 7th arrest, and Miller spent one night at Tiedeman's

trailer. However, on Friday evening of that week, Tiedeman and Miller got

into another argument at the trailer, and Miller went back to Pengelly's

apartment. Tiedeman believed that Miller had left with his tattooing guns

and went to Pengelly's apartment to retrieve them. Tiedeman called the

police to enlist their help, but they told him they 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 about 6 a.m. on May 14, Miller telephoned Tiedeman at the

restaurant. Miller told Tiedeman that she did not have his tattoo guns,

but she agreed that if he came to Pengelly's apartment she would repay him

ten dollars that she owed him. When Tiedeman and his two acquaintances

arrived at the apartment, Miller came out to their car, barefoot and in her

pajamas, and gave petitioner the money. As she started to return to her

apartment, Tiedeman got out of the car, picked her 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 testified that as they drove, Tiedeman threatened to kill

her and said 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 hospital 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 "buck

knife" in a sheath. Tiedeman was arrested, and the police took his knife

as a security precaution.
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II.

After a jury trial, Tiedeman was convicted of kidnapping. Tiedeman's

conviction and sentence were affirmed on appeal, and Tiedeman's petition

for review before the Minnesota Supreme Court was denied. Tiedeman then

filed a petition for writ of habeas corpus, which the District Court

denied. The District Judge did, however, grant him a certificate of

appealability pursuant to the Antiterrorism and Effective Death Penalty Act

of 1996 ("AEDPA"). The AEDPA became effective on April 24, 1996. Tiedeman

requested a certificate of appealability from the District Court on August

28, 1996, and the District Court granted this request.

Initially, Tiedeman argues that the AEDPA does not apply to this

case. Such an application, he says, would be retroactive, because his

petition for habeas corpus was filed in the District Court before the

enactment of AEDPA. We disagree. Whatever changes AEDPA has made with

respect to appeals by habeas corpus petitioners are procedural only. The

notice of appeal in this case, together with Tiedeman's application for a

certificate of appealability, was filed after the enactment of AEDPA. We

recognize that the Supreme Court, in Lindh v. Murphy, 117 S. Ct. ____ , 65

U.S.L. Week 4557 (U.S., June 23, 1997) (No. 96-6298), has held that the

amendments made by AEDPA to Chapter 153 of Title 28 (including the parts

of AEDPA that are at issue in this case), generally speaking, are

prospective only. The particular provision of the law at issue in Lindh,

however, had to do with the substantive standards for review of state-court

judgments by habeas courts. In stating its holding at the end of its

opinion, the Court said that "the new provisions of Chapter 153 generally

apply only to cases filed after the Act became effective." 117 S. Ct. at

____, 65 U.S.L. Week at 4561 (emphasis ours). The parties to this case

agree that the new provisions with respect to certificates of appealability

made no substantive change in the standards by which applications for such

certificates are governed. 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
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notice of appeal or similar document. Accordingly, we hold that AEDPA does

apply to the certificate-of-appealability issues presented in this case.

Section 102 of the AEDPA amended 28 U.S.C. § 2253 so that it now

reads, in pertinent part:

(c)(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).

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

habeas corpus proceeding in which the detention

complained of arises out of process issued by a

State court, an appeal by the applicant for the

writ may not proceed unless a district or a circuit

judge issues a certificate of appealability

pursuant to section 2253(c) of title 28, United
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States Code. If an appeal is taken by the

applicant, the district judge who rendered the

judgment shall either issue a certificate of

appealability 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 request

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. If an

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 leaves

district courts and district judges still in the picture with respect to

certificates of appealability. Section 102, on the other hand, could

reasonably be read to vest power over applications for certificates of

appealability exclusively in appellate judges. The question, in the end,

comes down to the meaning of the phrase "a circuit justice or judge." If

"circuit" modifies "judge" as well as "justice," then Section 102 of AEDPA

appears to take district judges out of the loop. The difficulty, of

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 appeals, all

of which have held that the new Fed. R. App. P. 22(b) must be given its

plain meaning, and that "judge" in Section 102 must include district

judges. We find especially persuasive Judge Carnes's able opinion in

Hunter v. United States, 101 F.3d 1565 (11th Cir. 1996) (en banc). Every

other circuit that has addressed the issue has held the same way. See
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Lozada v. United States, 107 F.3d 1011, 1014-16 (2d Cir. 1997); United

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.3d

1063, 1068-73 (6th Cir.), cert. denied, 117 S. Ct. 1724 (1997); United

States v. Asrar, 108 F.3d 217, 218 (9th Cir. 1997), 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 the

authority to issue certificates of appealability under Section 2253(c) and

Fed. R. App. P. 22(b).

III.

In this case, the District Court issued a certificate but failed to

follow Section 2253(c)(3), which requires that the certificate "shall

indicate which specific issue or issues satisfy the showing required by

paragraph (2)." Consequently, the certificate issued in this case is

defective on its face. It does not specify any issue or issues with

respect to which the applicant has made a substantial showing of the denial

of a constitutional right. We therefore vacate the certificate. Under the

previous law, when we were dealing with certificates of probable cause, we

occasionally vacated 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 defective, would mean that the

appeal would proceed in this Court in the ordinary course. If we believed

that the issues were without substance, we would simply summarily affirm

the judgment, instead of taking the intermediate and wholly unnecessary

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 case to a district judge with the request that he or she specify the

issue or issues on which the certificate of appealability had been granted.

The present case, however, 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 sense to go through the unnecessary step of remanding to

the District Court with 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. 

Consequently, we will treat this case as if no certificate of

appealability had been granted by the District Court. In that event, the

notice of appeal is treated as an application for certificate of

appealability addressed to the judges of this Court. We hold that Tiedeman

has not made a substantial showing of the denial of a constitutional right,

and we therefore deny the certificate.

Tiedeman argues that the state failed to disclose material

exculpatory evidence, permitted Miller to testify falsely, and exploited

her false testimony in argument, all in violation of his right to due

process of law. Tiedeman also argues that the trial judge imposed a 40-

month upward departure in his sentence in violation of his due process

rights.

First, Tiedeman alleges that the prosecutor had access to, but failed

to disclose, a police report from the May 7 incident which Tiedeman argues

would show he was arrested for traffic warrants and not assault. Since the

trial record is devoid of a discovery-violation allegation by Tiedeman, it

is unknown whether an actual May 7 police report existed and what

information it may have included. It is also unclear whether it was

available to the prosecutor or Tiedeman. Moreover, since this allegation

was not raised in state court, the issue is procedurally barred. See

Buckley v. Lockhart, 892 F.2d 715, 718 (8th Cir. 1989), cert. denied, 497

U.S. 1006 (1990).

Second, Tiedeman argues that the prosecutor permitted Miller to

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 police because Tiedeman and Miller were fighting. It is

irrelevant that a third party called the police instead of Miller. Also,

Tiedeman claims he was arrested for traffic warrants and not for assault.

Tiedeman had the opportunity to cross-examine Miller, to object to her

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 two

past convictions for the assault of his former girlfriend. We do not

believe that Miller's testimony regarding the May 7 arrest rises to the

level of a denial of due process.

Finally, we do not believe that the 40-month upward departure in

sentence violated Tiedeman's due-process rights. The trial court found

that there were compelling circumstances in this case to justify an upward

departure of 40 months. If this was error at all, which we doubt, the

error is one of state law only, not cognizable on habeas.

Tiedeman has not made a substantial showing of the denial of any

federal constitutional right. His application for a certificate of

appealability is denied.

It is so ordered.

A true copy.

Attest:

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