OCTOBER TERM, 1999
certiorari to the united states court of appeals for the ninth circuit
No. 98-6322. Argued October 4, 1999—Reargued March 29, 2000— Decided April 26, 2000
After petitioner Slack was convicted of second-degree murder in Nevada and his direct appeal was unsuccessful, he filed, in 1991, a federal habeas corpus petition under 28 U. S. C. § 2254. Because he wished to litigate claims he had not yet presented to the Nevada courts, but could not do so under the rule requiring complete exhaustion of state remedies, see Rose v. Lundy, 455 U. S. 509, Slack filed a motion to hold his federal petition in abeyance while he returned to state court. The Federal District Court ordered the habeas petition dismissed without prejudice, granting Slack leave to file an application to renew upon exhausting state remedies. After unsuccessful state postconviction proceedings, Slack filed anew in the federal court in 1995, presenting 14 claims for relief. The State moved to dismiss, arguing that (1) Slack's was a mixed petition raising some claims which had been presented to the state courts and some which had not, and (2) under the established Ninth Circuit rule, claims not raised in Slack's 1991 federal petition had to be dismissed as an abuse of the writ. The District Court granted the State's motion, holding, first, that Slack's 1995 petition was "[a] second or successive petition," even though his 1991 petition had been dismissed without prejudice for a failure to exhaust state remedies. The court then invoked the abuse of the writ doctrine to dismiss with prejudice the claims Slack had not raised in the 1991 petition. The dismissal order was filed in 1998, after which Slack filed in the District Court a pleading captioned "Notice of Appeal." Consistent with Circuit practice, the court treated the notice as an application for a certificate of probable cause (CPC) under the version of § 2253 that existed before enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). It denied a CPC, concluding the appeal would raise no substantial issue. The Ninth Circuit likewise denied a CPC, so that Slack was not permitted to appeal the order dismissing his petition.
1. Where a habeas petitioner seeks to initiate an appeal of the dismissal of his petition after April 24, 1996 (AEDPA's effective date), the right to appeal is governed by the requirements now found at § 2253(c)— which provides, inter alia, that such an appeal may not be taken unless
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