Slack v. McDaniel, 529 U.S. 473, 9 (2000)

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Cite as: 529 U. S. 473 (2000)

Opinion of the Court

"(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)." 28 U. S. C. 2253(c) (1994 ed., Supp. III).

The issue we consider at the outset is whether the pre- or post-AEDPA version of 2253 controls Slack's right to appeal. In Lindh v. Murphy, 521 U. S. 320 (1997), the Court held that AEDPA's amendments to 28 U. S. C. 2254, the statute governing entitlement to habeas relief in the district court, applied to cases filed after AEDPA's effective date. 521 U. S., at 327. Slack contends that Lindh means 2253(c) does not apply to him because his case was commenced in the District Court pre-AEDPA. That position is incorrect. For purposes of implementing the holding in Lindh, it must be recognized that 2254 is directed to proceedings in the district courts while 2253 is directed to proceedings in the appellate courts. Just as 2254 applies to cases filed in the trial court post-AEDPA, 2253 applies to appellate proceedings initiated post-AEDPA. True, Lindh requires a court of appeals to apply pre-AEDPA law in reviewing the trial court's ruling, for cases commenced there pre-AEDPA; but post-AEDPA law governs the right to appeal in cases such as the one now before us.

While an appeal is a continuation of the litigation started in the trial court, it is a distinct step. Hohn v. United

481

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