In an issue packed with capital decisions, seven in all, not a single outright reversal of sentence is noted.   Proving the effects of how politics impacts on the death penalty, in Workman v. Bell the seven republican appointees of the Sixth Circuit voting as a block have forced the denial of a  rehearing en banc where the ultimate question was whether Workman is guilty of  murder.   The all white Fourth Circuit in Bacon v. Lee reverses, yet again, a grant of habeas relief for a black death row inmate;  here the district court had found that the counsel had been ineffective for failing to bring to the jury's attention that Bacon had aided in the apprehension of  another capital felon.   The Third Circuit in United States v. Hammer holds that a federal death sentence need not be reviewed by any appellate court  under certain conditions. In Lowery v. Anderson, the Seventh Circuit denies relief chiefly on use of prior testimony in the penalty phase of the trial. Peoples v. Haley  remands for technical compliance with  the Antiterrorism Act's appellate provisions (so that the district court can issue a COA instead of a CPC).  The Eighth Circuit in Roll v. Carnahan examines how much due process is required in a capital clemency proceeding.  Finally, in Caldwell v. Johnson, the Fifth Circuit takes another bite out of the common law prohibition against executing the insane holding there exists no substantive right to a defense psychiatrist at a competency to be executed hearing. 

Finally, a sneak preview of the Supreme Court's current term is offered as Bloody Monday and the start of the October 2000 term quickly approaches.

ARTUZ, SUPT., GREEN HAVEN v. BENNETT (No. 99-1238)
Habeas Corpus, Antiterrorism and Effective Death Penalty Act (AEDPA), Tolling Provision 

ATWATER v. CITY OF LAGO VISTA (No. 99-1408)
Fourth Amendment, Search and Seizure, Seat Belts, Custodial Arrest 

CITY OF INDIANAPOLIS v. EDMOND (No. 99-1030)
Fourth Amendment, Search and Seizure, Automobile Checkpoints 

CLEVELAND v. UNITED STATES (No. 99-804)
Mail Fraud, Video Poker License, Property 

DANIELS, EARTHY D. V. UNITED STATES (No. 99-9136)
Armed Career Criminal Act, Sentencing, Sentence Enhancement, Prior State Conviction 

FERGUSON v. CITY OF CHARLESTON (No. 99-936)
Fourth Amendment, Drug Testing, Warrantless Search, Pregnant Women 

GLOVER v. UNITED STATES (No. 99-8576)
Sixth Amendment, Ineffective Assistance of Counsel, Sentencing 

ILLINOIS v. McARTHUR (No. 99-1132)
Fourth Amendment, Search and Seizure, Securing Dwelling While Awaiting Warrant 

LOPEZ v. DAVIS (No. 99-7504)
Early Release, Voluntary Residential Drug Abuse Treatment Program, Discretion 

ROGERS v. TENNESSEE (No. 99-6218)
Ex Post Facto, Murder, Year-and-a-Day Rule 

SELING v. YOUNG (No. 99-1185)
Fifth Amendment, Sexually Violent Predator Statute, Double Jeopardy, Ex Post Facto 

TEXAS v. COBB (No. 99-1702)
Sixth Amendment, Right to Counsel, Waiver 

Following the Supreme Court's decision in Lindh, 521 U.S. at 336, 117 S. Ct. at 2068 (holding that the Chapter 153 amendments, which apply to all federal habeas petitions, are inapplicable to federal habeas petitions pending on the date of the AEDPA's enactment), the lower federal courts concluded that the pre-AEDPA procedure for obtaining a CPC applied if the petitioner's habeas petition and notice of appeal from the district court's denial of that petition were filed in the district court before April 24, 1996, the AEDPA's effective date. See generally Mincey v. Head, 206 F.3d 1106, 1130 & n.58 (11th Cir. 2000). Neither Lindh nor the lower court decisions that followed, however, clearly answered the question whether the AEDPA required an unsuccessful habeas petitioner to obtain a COA from the district court in order to appeal the denial of relief if the notice of appeal was filed after the effective date of the AEDPA. Compare Tiedeman v. Benson, 122 F.3d 518, 520-21 (8th Cir. 1997) (holding that COA is required in cases in which the notice of appeal is filed after the effective date of the AEDPA, even though the habeas petition was originally filed in the district court before that date), with Fuller v. Roe, 182 F.3d 699, 702 (9th Cir. 1999) (joining the majority of circuit courts in holding "that §§ 2254 and 2255 petitioners who filed their petitions in district court prior to AEDPA's effective date, regardless of whether they filed their notice of appeal before or after AEDPA's [effective date], do not need a certificate of appealability to proceed with their appeal") (quoting United States v. Kunzman, 125 F.3d 1363, 1364 n.2 (10th Cir. 1997)); Crowell v. Walsh, 151 F.3d 1050, 1052 (D.C. Cir. 1998) (same); Tejeda v. Dubois, 142 F.3d 18, 21-22 & n.4 (1st Cir. 1998) (same); Berrios v. United States, 126 F.3d 430, 431 n.2 (2d Cir. 1997) (same); United States v. Skandier, 125 F.3d 178, 179-82 (3rd Cir. 1997) (same); Hardwick, 122 F.3d at 936 (same); Arredondo v. United States, 120 F.3d 639, 640 (6th Cir. 1997) (same); United States v. Carter, 117 F.3d 262, 264 (5th Cir. 1997) (same). 

Earlier this year, the Supreme Court, in Slack v. McDaniel, __ U.S. __, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000), answered the question, holding that, in a section 2254 or 2255 proceeding,
 

when a habeas corpus petitioner seeks to initiate an appeal of the dismissal of a habeas corpus petition after April 24, 1996 (the effective date of the AEDPA), the right to appeal is governed by the certificate of appealability (COA) requirements now found at 28 U.S.C. § 2253(c) (1994 ed., Supp. III). This is true whether the habeas corpus petition was filed in the district court before or after AEDPA's effective date.

Slack, __ U.S. at __, 120 S. Ct. at 1600.2 Pursuant to Slack, it is now clear that there should have been a COA in this case rather than a CPC, which raises the question whether this court should itself apply the COA standards or remand for the district court to do so.

As we held in Franklin v. Hightower, 215 F.3d 1196 (11th Cir. 2000) (per curiam):
 

[T]he grant of a CPC rather than a COA . . . is not fatal to the appeal. By applying AEDPA's standards to this appeal and issuing a proper COA (if warranted), this panel may "fix" the inadequacies of the present CPC. . . . And the Court in Slack remanded the case in part for the court of appeals to apply the appropriate standard, thus implying that defective leave to appeal neither dooms the appeal nor deprives the appellate courts of jurisdiction. See Slack, 120 S. Ct. at 1607.
 

Id. at 1199. In other words, in this situation, it is within the discretion of the court of appeals whether to apply the COA standards itself, or remand to the district court. Considerations of judicial economy will influence this decision.

In Hunter v. United States, 101 F.3d 1565, 1575 (11th Cir. 1996) (en banc), overruled in part on other grounds by Lindh, 521 U.S. at 322-23, 117 S. Ct. at 2061, the district court had granted a COA, but had neglected to indicate for which of the issues the applicant had made a substantial showing of the denial of a constitutional right, in accordance with section 2253(c)(3)'s command. We remanded the case to the district court so it could perform this statutorily mandated function. Hunter, 101 F.3d at 1584. We also remanded the case because the petitioner had raised numerous claims in his application for a COA and it was impossible for us to glean from the record which issue or issues the district court thought worthy of appellate review.3 Cf. Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998) (limiting appellate review to the issue or issues specified in the COA).

We are faced in the instant appeal with a case similar to Hunter, and as with Hunter, remanding the matter to the district court is the proper course of action. See, e.g., Hunter, 101 F.3d at 1584 (noting that "we remand the case to the district court for compliance with the requirement of 28 U.S.C. § 2253(c)(3) that the certificate of appealability indicate which specific issue or issues satisfies the § 2253(c)(2) standard"); Edwards v. United States, 114 F.3d 1083, 1084-85 (11th Cir. 1997) (per curiam) (concluding that "[b]ecause appeals . . . filed after the effective date of the Antiterrorism and Effective Death Penalty Act are ineffective without a COA, [this appeal is] not before us on the merits" and remanding the case to the district court to grant or deny a COA); United States v. Weaver, 195 F.3d 52, 53 (D.C. Cir. 1999) (stating that "we must remand the record for the district court to specify the issue or issues for appeal"); Muniz v. Johnson, 114 F.3d 43, 45-46 (5th Cir. 1997) (stating that "we conclude that when a district court issues a CPC or COA that does not specify the issue or issues warranting review, as required by 28 U.S.C. § 2253(c)(3), the proper course of action is to remand to allow the district court to issue a proper COA, if one is warranted"); Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1076 (6th Cir. 1997), overruled in part on other grounds by Lindh, 521 U.S. at 322-23, 117 S. Ct. at 2061 ("Because the certificate issued by the district court does not comply with [the requirements of 28 U.S.C. § 2253(c)], we believe it would be improper for us to examine the merits of Lyons's petition. Accordingly, we remand the case to allow the district court to issue a proper certificate of appealability consistent with this opinion."). But cf. Franklin, 215 F.3d at 1199 (holding that the later panel could "fix" the deficient CPC, which had been issued by a single circuit judge after the district court had denied a CPC, even though a COA rather than a CPC should have been issued).

To be faithful to the amended version of section 2253(c), and Supreme Court and Eleventh Circuit precedent, we vacate the district court's CPC and remand the case to the district court with the instruction that the court "indicate which specific issue or issues satisfy" the standard of a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2), (3). 

 In his complaint, Roll alleges the Missouri governor is a current candidate for the United States Senate in the November 2000 election, and one of the campaign issues is the granting of clemency petitions in death penalty cases. Roll alleges the governor is "politically restrained from being full and fair in considering [Roll's] clemency petition," and "there is no way [he] can get a fair consideration for clemency with the governor and the state attorney general . . . using this as a political stone for higher office." Roll also asserts that to execute him in an election year without establishing a board of inquiry under Mo. Rev. Stat. § 552.070 would deny him due process and equal protection and subject him to cruel and unusual punishment. Besides a stay of execution, Roll asks the federal courts to order Missouri to issue written rules for clemency procedures, give him access to the new procedures, and establish a board of inquiry to study the felony murder and death penalty cases over the past eighteen years.
 

We agree with the district court that the lawsuit fails to state a claim upon which relief may be granted. As the district court observed, although some minimal due process protections apply to a state clemency proceeding, see Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 288-89, 290 (1998), the decision to grant or deny clemency is left to the discretion of the governor, see Mo. Const. Art. IV, § 7; Mo. Rev. Stat. § 217.800(1); id. § 552.070. Thus, Roll's complaint that the governor will not be objective fails. Unlike the plaintiffs in Young v. Hayes, 218 F.3d 850 (8th Cir. 2000), Roll does not contend the state has deliberately interfered with his efforts to present evidence to the governor in connection with his clemency application. Instead, Roll wants a board of inquiry to present evidence on his behalf. Appointment of a board of inquiry is also left to the governor's sole discretion, however, so Roll has no due process right to the appointment. Because Roll failed to allege the defendants interfered with his clemency proceedings or denied him minimal due process protections, Roll's lawsuit fails to state a claim upon which relief may be granted. Roll's request for clemency procedures is likewise meritless.