convincing evidence that but for the constitutional
violation “no reasonable factfinder would have found the
[petitioner] guilty of the underlying offense.” 28 U.S.C.
§ 2254(e)(2). A “failure” to develop the claim in the state
courts “is not established unless there is a lack of
diligence, or some greater fault, attributable to the
prisoner or the prisoner’s counsel.” Williams v. Taylor,
529 U.S. 362, 120 S.Ct. 1479, 146 L.Ed.2d 435
(2000). Hence, if the claim was not developed in the
state courts, but there has been no lack of diligence, the
petitioner is excused from compliance with 28 U.S.C. §
2254(e)(2)(A), (B). Id. at 1491. In Williams v. Taylor,
the Supreme Court found a lack of diligence as to one of
Williams’ claims, but remanded for an evidentiary
hearing on his claims of juror bias and prosecutorial
misconduct.
XV. APPEALS
In the absence of a certificate of appealability issued
by a circuit judge or a district court judge, see also United
States v. Eyer, 113 F.3d 470, 472-74 (3d Cir. 1997), an
appeal may not be taken to the court of appeals after April
24, 1996. 28 U.S.C. § 2253(c)(1)(A). The applicant
must make a “substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), that is, a
showing that “jurists of reason would find it debatable
whether the petition states a valid claim of the denial of
a constitutional right.” Slack v. McDaniel, 529 U.S. 473,
120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000).
Relying on Slack, the Third Circuit has expressly rejected
any contention that non-constitutional issues may justify
the grant of a certificate of appealability. United States v.
Cepero, 224 F.3d 256 (3d Cir.), cert. denied 121 S.Ct.
861 (2001) When the district court denies a habeas
petition on procedural grounds without reaching the
prisoner’s underlying constitutional claim, a certificate of
appealability should issue when the petitioner makes
both the above showing and the additional showing that
“jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Id.
The certificate of appealability must specify the issue or
issues which satisfy the standard of 28 U.S.C. §
2253(c)(3). Coss v. Lackawanna County District Attorney,
204 F.3d 453, 461 (3d Cir.), petition for cert. filed, 68
U.S.L.W. 3749 (May 24, 2000) (No. 99-1884). The
court of appeals must review the grant of a certificate of
appealability by the district court to satisfy itself that the
petitioner made the requisite showing of the
constitutional deprivation and that, thus, the court of
appeals properly had jurisdiction of the matter. United
States v. Cepero, 224 F.3d 256 (finding that district court
erred in granting the certificate because there was no
showing of a constitutional violation). No certificate of
appealability is required when the government appeals.
Rios v. Wiley, 201 F.3d 257, 262 n. 5 (3d Cir. 2000);
Lambert v. Blackwell, 134 F.3d 506, 512 n. 15 (3d Cir
1997); Fed. R. App. Pro. 22.Jurisdiction of the court of appeals is pursuant to 28
U.S.C. § 1291. Lines v. Larkins, 208 F.3d 153 (3d Cir.
2000). The court of appeals’ review is plenary. Lines v.
Larkins, 208 F.3d at 159 n.6; Doctor v. Walters, 96 F.3d
675, 678 (3d Cir. 1996); see also Coss v. Lackawanna
County District Attorney, 204 F.3d at 461 (the court of
appeals has plenary review over the legal component of an
ineffective assistance of counsel claim); Parrish v.
Fulcomer, 150 F.3d 326, 328 (3d Cir. 1998). Review of
the district court’s interpretation of the AEDPA is
plenary. West v. Vaughn, 204 F.3d 53 (3d Cir. 2000).
E.g., Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000)
(court of appeals has plenary review over statutory
limitations period issue).