Page:United States Statutes at Large Volume 110 Part 2.djvu/44

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110 STAT. 1218 PUBLIC LAW 104-132—APR. 24, 1996 "(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).". SEC. 103. AMENDMENT OF FEDERAL RULES OF APPELLATE PROCE- DURE. 28 USC app. Rule 22 of the Federal Rules of Appellate Procedure is amended to read as follows: Rule 22. Habeas corpus and section 2255 proceedings "(a) APPLICATION FOR THE ORIGINAL WRIT.—An application for a writ of habeas corpus shall be made to the appropriate district court. If application is made to a circuit judge, the application shall be transferred to the appropriate district court. If an application is made to or transferred to the district court and denied, renewal of the application before a circuit judge shall not be permitted. The applicgmt may, pursuant to section 2253 of title 28, United States Code, appeal to the appropriate court of appeals from the order of the district court denying the writ. "(b) CERTIFICATE OF APPEALABILITY.— In a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court, an appeal by the applicant for the writ may not proceed unless a district or a circuit judge issues a certificate of appealability pursuant to section 2253(c) of title 28, United States Code. If an appeal is taken by the applicant, the district judge who rendered the judgment shall either issue a certificate of appealability or state the reasons why such a certificate should not issue. The certificate or the statement shall be forwarded to the court of appeals with the notice of appeal and the file of the proceedings in the district court. If the district judge has denied the certificate, the applicant for the writ may then request issuance of the certificate by a circuit judge. If such a request is addressed to the court of appeals, it shall be deemed addressed to the judges thereof and shall be considered by a circuit judge or judges as the court deems appropriate. If no express request for a certificate is filed, the notice of appeal shall be deemed to constitute a request addressed to the judges of the court of appeals. If an appeal is taken by a State or its representative, a certificate of appealability is not required.". SEC. 104. SECTION 2254 AMENDMENTS. Section 2254 of title 28, United States Code, is amended— (1) by amending subsection (b) to read as follows: • "(b)(1) All application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that— "(A) the applicant has exhausted the remedies available in the courts of the State; or "(B)(i) there is an absence of available State corrective process; or "(ii) circumstances exist that render such process ineffective to protect the rights of the applicant. "(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.