Slack v. McDaniel, 529 U.S. 473, 8 (2000)

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480

SLACK v. McDANIEL

Opinion of the Court

mixed petition. Here, Slack seeks to challenge the dismissal of claims as abusive; he does not contend that all claims presented in the amended petition were exhausted.

The District Court's dismissal order was filed March 30, 1998. On April 29, 1998, 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 preAEDPA version of 28 U. S. C. 2253; and it denied a CPC, concluding the appeal would raise no substantial issue. The Court of Appeals likewise denied a CPC. No. CV-95-194 (CA9, July 7, 1998), App. 197. As a result, Slack was not permitted to take an appeal of the order dismissing his petition. We granted certiorari. 525 U. S. 1138 (1999). Slack contends that he is entitled to an appeal of the dismissal of his petition, arguing that the District Court was wrong to hold that his 1995 petition was "second or successive." We agree that Slack's 1995 petition was not second or successive, but first we must resolve two preliminary questions.

II

Before AEDPA, appellate review of the dismissal of a habeas petition was governed by a version of 28 U. S. C. 2253 enacted in 1948. Act of June 25, 1948, 62 Stat. 967. The statute provided no appeal could be taken from the final order in a habeas corpus proceeding "unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause." Ibid. The statute did not explain the standards for the issuance of a CPC, but the Court established what a prisoner must show to obtain a CPC in Barefoot v. Estelle, 463 U. S. 880 (1983): "a substantial showing of the denial of a federal right." Id., at 893 (citation and brackets omitted).

Effective April 24, 1996, AEDPA amended 2253. As relevant here, AEDPA added subsection (c), which provides:

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