356
Thomas, J., dissenting
I agree with the majority that the existence of a COA is a jurisdictional prerequisite to the merits appeal. Ante, at 336. However, the Court takes a wrong turn when it implies that the merits appeal is part of the habeas process (or "proceeding") but the COA determination somehow is not. Overwhelming authority (including the majority opinion) confirms that § 2254(e)(1) applies to the merits appeal. See ante, at 342; Weaver v. Bowersox, 241 F. 3d 1024, 1030 (CA8 2001); Putman v. Head, 268 F. 3d 1223, 1241 (CA11 2001); Johnson v. Gibson, 254 F. 3d 1155, 1160 (CA10 2001); Francis S. v. Stone, 221 F. 3d 100, 114-115 (CA2 2000); Weeks v. Snyder, 219 F. 3d 245, 258 (CA3 2000); Mueller v. Angelone, 181 F. 3d 557, 575 (CA4 1999); Ashford v. Gilmore, 167 F. 3d 1130, 1131 (CA7 1999); cf. Sumner v. Mata, 449 U. S. 539, 546-547 (1981) (pre-Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) factual deference provision with virtually identical language applies to merits appeal). The COA determination should be treated no differently, because § 2254(e)(1) draws no distinction between the merits appeal and the COA. The Court's silent conclusion to the contrary is simply illogical. The COA's status as the jurisdictional prerequisite for the merits appeal requires that both the COA determination and the merits appeal be considered a part of the same "proceeding."
The Court's rejection of this conclusion also conflicts with pre-AEDPA practice. Prior to AEDPA, access to a merits appeal in federal habeas corpus proceedings was governed by a mechanism similar to the COA, known as a certificate of probable cause, or CPC. See Slack, supra, at 480. There was also a standard of factual deference similar to, though weaker than, the standard in § 2254(e)(1). See 28 U. S. C. § 2254(d) (1994 ed.).1 Under these provisions (indis-1 The pre-AEDPA standard of factual deference provided: "In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual
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