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Opinion of the Court
"(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." 28 U. S. C. § 2253(c)(1) (1994 ed., Supp. II).
Certificates of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." § 2253(c)(2).
Hohn filed a notice of appeal on July 29, 1996, three months after AEDPA's enactment. The Court of Appeals treated the notice of appeal as an application for a certificate of appealability and referred it to a three-judge panel. The panel decided Hohn's application did not meet the standard for a § 2253(c) certificate. In the panel's view, "Bailey did no more than interpret a statute, and an incorrect application of a statute by a district court, or any other court, does not violate the Constitution." 99 F. 3d 892, 893 (CA8 1996). Given this determination, the panel declined to issue a certificate of appealability.
Judge McMillian dissented. In his view, Bailey cast doubt on whether Hohn's conduct in fact violated 18 U. S. C. § 924(c)(1). The Due Process Clause, he reasoned, does not "tolerat[e] convictions for conduct that was never criminal," so Hohn had made a sufficient showing of a constitutional deprivation. 99 F. 3d, at 895. When the Court of Appeals denied Hohn's rehearing petition and a suggestion for re-hearing en banc, four judges noted they would have granted the suggestion.
Hohn petitioned this Court for a writ of certiorari to review the denial of the certificate, seeking to invoke our jurisdiction under 28 U. S. C. § 1254(1). The Government now found itself in agreement with Hohn, saying his claim was, in fact, constitutional in nature. It asked us to vacate the judgment and remand so the Court of Appeals could reconsider in light of this concession. We may not vacate and remand, of course, unless we first have jurisdiction over the
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