Opposition Brief — Cooper v. United States

i a i a

No. 02-145 ' NOV 2 2092

In the Supreme Court of the Umted States”

GORDON P. COOPER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

MICHAEL CHERTOFF

Assistant Attorney General

KARIN B. HOPPMANN

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether, when reviewing the denial of petitioner’s

motion under 28 U.S.C. 2255, the court of appeals had

authority to decline consideration of issues not included

in the certificate of appealability issued by the district

court, because petitioner did not move for an expanded

certificate as required by local rule.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Bui v. Dipaolo, 170 F.3d 232 (1st Cir. 1999),

cert. denied, 529 U.S. 1086 (2000) ..........ccseccscscesescecesenees

Certificates of Appealability, In re, 106 F.3d 1306

SU IE, SHIITTE. scicisisthirencenlevteninnessinbeinetenrsensesebessinsternesoenenecstete

Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999),

cert. denied, 529 U.S. 1009 (2000) ......

Jones v. United States, 224 F.3d 1251 (11th Cir.

2000) sllhasiphdelesaiesteni

Kincade v. Sparkman, 117 F.3d 949 (6th Cir.

1997) ‘

Lackey v. Johnson, .116 F.3d 149 (5th Cir. 1997) ............

Murray v. United States, 145 F.3d 1249 (11th

Na: SITET iciaicieshnbbihcionhipaissdihihenineianisbibnigantseneietectenemnasonnnetonserennee

Ortega-Rodriguez v. United States, 507 U.S. 234

STITT Grscieiihinskdieneaashdibiadcnitiiiesininaeshinnbenimrenionninannneinnesnnninessenes

Porter v. Gramley, 112 F.3d 1308 (7th Cir. 1997),

cert. denied, 522 U.S. 1098 (1998) .........scscsssssssssecssesseresees

Ramsey v. Bowersox, 149 F.3d 749 (8th Cir.

1998), cert. denied, 525 U.S. 1166 (1999) .........csseseees

Ross v. Ward, 165 F.3d 793 (10th Cir.), cert.

SER, SE Sate, CPT CROIUD cetavritcsencesestessestncnseisrvenennenstnnccses

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

Solis v. Garcia, 219 F.3d 922 (9th Cir. 2000),

cert. denied, 122 S. Ct. 94 (ZOOL) .......cccccccscssccscsececsereersers

Strickland v. Washington, 466 U.S. 668 (1984) ..............

(III)

7,8

IV

Cases—Continued: Page

Sylvester v. Hanks, 140 F.3d 713 (7th Cir. 1998) ........... 7

United States v. Christakis, 238 F.3d 1164

GE SE TD eieeiasiceieesicnatsitintnictavteiaecriitinntantincsininiapennins 10, 12

United States v. Cooper, 173 F.3d 1192 (3d Cir.),

cert. denied, 528 U.S. 1019 (1999) .......s.ssssessessseeeseeeseeneess 2,3

United States v. Kimler, 150 F.3d 429 (5th Cir.

REE vinessininneisangiinnipinincaunaiabienhbaeiimnaiitianaiiinnineninaen ~

United States v. Zuno-Arce:

BOD F’Bd 2GBG (Gta Cir. BOO) xrececerecesensecesccerenecsssesesorenscnsens ~

245 F.3d 1108 (9th Cir. 2001) .......ccscsccsssscssssssesens 12

Valverde v. Stinson, 224 F.3d 129 (2d Cir.

2000) ...... 7

Wisniewski v. United States, 353 U.S. 901

(1957) ....... 12

Constitution, statutes and rules:

U.S. Const. Amend. VI 3, 4,5

Antiterrorism and Effective Death Penalty Act of 1996,

I BE EG, ceeerivteinstectirensinsersiniariatinanenesntnneeaiaiinsis 4,11

18 U.S.C. 371 a 2

A TEA Se etescteacasecnsnschuieseasiniensiensintininstiterpentibsaasietieiins 2-3

28 U.S.C. 2253(c) ; on ; 4,5

28 U.S.C. 2253(c)(1) - 3, 5,6

28 U.S.C. 2253(c)(2) ...... 6,7

28 U.S.C. 2253(c)(8) ......... “we 3, 6,7

28 U.S.C. 2255 2, 3, 4, 5, 6, 7, 8, 10

SD UE, Te cetcrecicceteentinnennpsneesinininiinnnibeiiven 2

33 U.S.C. 1342 2

Federal Rules of Appellate Procedure:

Rule 22(b) ... 7, 11,12

Rule 22(b)(1) ..... 6,7

Rule 22(b)(2) 6, 7, 12

ist Cir. R. 22.1(c) -

3d Cir. R. 22.1(b) 8, 9, 10

4th Cir. R. 22-1 12, 13

9th Cir. R. 22-1(d) 4, 5, 8-9

Jn the Supreme Court of the Anited States

No. 02-145

GORDON P. COOPER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UN. TED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A1-A3)

is not published in the Federal Reporter, but is re-

printed in 31 Fed. Appx. 501.

JURISDICTION

The judgment of the court of appeals was entered on

March 11, 2002. A petition for rehearing was denied on

May 1, 2002 (Pet. App. D1-D2). The petition for writ of

certiorari was filed on July 26, 2002. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of California, petitioner _

(1)

2

was convicted of conspiracy, in violation of 18 U.S.C.

371; unlawful disposal of sewage sludge, in violation of

33 U.S.C. 1842 and 1319(c)(2)(A); and mail fraud, in vio-

lation of 18 U.S.C. 1341. He was sentenced to 51

months of imprisonment. The court of appeals affirmed

his convictions and sentence, United States v. Cooper,

173 F.3d 1192 (8d Cir. 1999), and this Court denied

certiorari, 528 U.S. 1019 (1999). Petitioner then filed a

motion under 28 U.S.C. 2255 to vacate his sentence.

The district court denied the motion (Pet. App. B1-B11)

and issued a certificate of appealability (COA) for only

one of petitioner’s several claims (Pet. App. C1-C4).

The court of appeals, limiting the scope of review to the

issue included in the COA, affirmed the denial of the

Section 2255 motion. Pet. App. Al-A3.

1. Petitioner orchestrated the illegal dumping of

untreated sewer sludge in southern California. As the

officer of a sewage disposal firm that contracted with

the city of San Diego, petitioner arranged for the

disposal of the city’s sewage sludge. The firm originally

arranged to haul the sludge to a treatment site for safe

compost, but the site became overwhelmed. Petitioner

then instructed employees to haul the sludge to Mexico,

outside the city’s jurisdiction. When Mexican authori-

ties detained the sludge trucks, petitioner directed the

dumping of the sludge, under cover of night, on a

California farm. Petitioner falsely informed the farm’s

owner that the dumping was authorized by permit. He

also caused the submission of false “weighmaster”

certificates indicating that the sludge was still going to

Mexico. 173 F.3d at 1196-1198.

A grand jury indicted petitioner for conspiracy to

violate the laws of the United States (18 U.S.C. 371),

unlawful disposal of sewage sludge (33 U.S.C.

1319(c)(2)(A) and 1342), and mail fraud (18 U.S.C. 1341).

3

After a jury trial, petitioner was convicted of all the

charges and sentenced to 51 months of imprisonment.

173 F.3d at 1200. The court of appeals affirmed his

convictions and sentence, id. at 1196, and this Court

denied his petition for certiorari, 528 U.S. 1019.

2. In November 2000, petitioner filed a motion under

28 U.S.C. 2255 that raised numerous challenges to his

convictions and sentence. The district court denied the

motion. Pet. App. B1-B11.'

Petitioner then filed a motion in the district court

requesting a COA authorizing appeal. See 28 U.S.C.

2253(c)(1) (“Unless a circuit justice or judge issues a

[COA], an appeal may not be taken to the court of

appeals from—* * * the final order in a proceeding

under section 2255.”). The district court granted a COA

limited to one of petitioner’s issues: whether his Sixth

Amendment rights were violated when his counsel

failed to uncover alleged perjury committed at trial.

See 28 U.S.C. 2253(c)(3) (“The certificate * * * shall

indicate which specific issue or issues satisfy the

showing required.”). Pet. App. C3. Petitioner filed a

notice of appeal from the district court’s denial of his

motion. He then attempted to raise in the court of

appeals claims that the district court had not included

in the COA. See Pet. App. A2.

3. In an unpublished memorandum opinion, the

court of appeals affirmed the district court’s denial of

' The district court refused to entertain most of petitioner’s

claims because petitioner had already unsuccessfully raised the

claims on direct appeal. The court did, however, evaluate two of

the claims: that petitioner had received ineffective assistance

when his counsel failed to uncover the government’s alleged use of

perjured testimony at trial, and that he had received ineffective

assistance when his counsel failed to challenge a sentence en-

hancement. Pet. App. B5.

4

petitioner’s Section 2255 motion. Pet. App. Al-A3. The

court of appeals limited the scope of its review to the

Sixth Amendment issue included in the COA. Pet.

App. A2. The court explained that, under the Anti-

terrorism and Effective Death Penalty Act of 1996

(AEDPA), 28 U.S.C. 2261 et seq., review of the denial of

a motion under 28 U.S.C. 2255 is limited to those issues

specified in a COA. Pet. App. A2 (citing 28 U.S.C.

2253(c)). The court observed that petitioner had not

filed a motion in the court of appeals requesting

certification of additional issues beyond those included

in the COA granted by the district court. The court

explained that such a motion is required by Ninth Cir-

cuit Rule 22-1(d). That rule provides as follows:

If the district court denies a [COA] in part, the court

of appeals will not consider uncertified issues unless

petitioner first seeks, and the court of appeals

grants, broader certification. Petitioners desiring

broader certification must file, in the court of ap-

peals, a separate motion for broader certification,

along with a statement of reasons why a certificate

should be granted as to any issues(s) within thirty-

five days of the district court’s entry of its order

denying a [COA]. Respondent may file an opposi-

tion within thirty-five days of the date petitioner’s

motion is served. If a motion for broader certifi-

cation is filed in a capital case where an execution

date is scheduled and no stay is in place, respondent

shall file a response as soon as practicable after

service of the motion. Otherwise, respondent shall

file a response within thirty-five days of the date

petitioner’s motion is served.

9th Cir. R. 22-1(d); see Pet. App. E3. Because peti-

tioner failed to file a request to expand the COA within

5

35 days of the district court order granting the limited

COA, the court of appeals declined to consider the

additional issues that petitioner had briefed. Pet. App.

A2.

Addressing the issue on which petitioner had ob-

tained a COA, the court of appeals affirmed the district

court’s ruling that petitioner’s Sixth Amendment rights

were not violated. Pet. App. A2-A3. The court of

appeals held that petitioner had not shown that his

counsel performed deficiently in failing to uncover the

alleged perjury at trial because petitioner had not

established that counsel knew of any facts that would

have warranted further inquiry into the alleged per-

jury. See Pet. App. A2 (citing Strickland v. Wash-

ington, 466 U.S. 668, 686, 690 (1984)). The court further

held that petitioner had not shown prejudice from

counsel’s actions because there was no reasonable prob-

ability that the outcome of the trial would have been

different if counsel had impeached the witness with the

alleged perjured testimony. Pet. App. A2-A3.

ARGUMENT

Petitioner contends that the court of appeals was

required to consider whether to expand the COA

granted by the district court to encompass his addi-

tional claims despite his failure to move for an ex-

panded COA within the time limit established by Ninth

Circuit Rule 22-1. That issue does not warrant this

Court’s review.

Under 28 U.S.C. 2253(c), a federal prisoner must ob-

tain a COA from the district court or the court of ap-

peals before he may appeal the district court’s denial

of collateral relief under 28 U.S.C. 2255. Section

2253(c)(1) provides that “an appeal may not be taken”

from “the final order in a proceeding under Section

6

2255” “({uJnless a circuit justice or judge” issues a COA.

28 U.S.C. 2253(c)(1). Section 2253(c)(2) further pro-

vides that a COA may issue only if the prisoner has

made “a substantial showing of the denial of a constitu-

tional right.” 28 U.S.C. 2253(c)(2). Section 2253(c)(3)

requires that any COA “indicate which specific issue or

issues satisfy the showing required by paragraph (2).”

28 U.S.C. 2253(c)(8).

Federal Rule of Appellate Procedure 22(b)(1) also

provides that a Section 2255 movant “cannot take an

appeal unless a circuit justice or a circuit or district

judge issues a [COA].” Fed. R. App. P. 22(b)(1). The

rule indicates that the COA process begins in the

district court, but, if the district court does not issue a

COA, the movant may request a COA from the court of

appeals:

If an applicant files a notice of appeal, the district

judge who rendered the judgment must either issue

a [COA] or state why a certificate should not issue.

The district clerk must send the certificate or state-

ment to the court of appeals with the notice of ap-

peal and the file of the district-court proceedings. If

the district judge has denied the certificate, the

applicant may request a circuit judge to issue the

certificate.

Fed. R. App. P. 22(b)(1). In addition, Rule 22(b)(2) pro-

vides:

A request addressed to the court of appeals may be

considered by a circuit judge or judges, as the court

prescribes. If no express request for a certificate is

filed, the notice of appeal constitutes a request ad-

dressed to the judges of the court of appeals.

Fed. R. App. P. 22(b)(2).

i)

7

Because of Section 2253(c)(3)’s requirement that a

COA “indicate which specific issue or issues” meet the

standard for appealability in Section 2253(c)(2), COAs

are “granted on an issue-by-issue basis.” Lackey v.

Johnson, 116 F.3d 149, 151 (5th Cir. 1997). The scope of

review on appeal is limited to the issues specified in the

COA. Ibid.; Valverde v. Stinson, 224 F.3d 129, 136 (2d

Cir. 2000); Bui v. Dipaolo, 170 F.3d 232, 237 (1st Cir.

1999), cert. denied, 529 U.S. 1086 (2000); Hiivala v.

Wood, 195 F.3d 1098, 1102-1103 (9th Cir. 1999), cert.

denied, 529 U.S. 1009 (2000); Sylvester v. Hanks, 140

F.3d 713, 715 (7th Cir. 1998); Ramsey v. Bowersox, 149

F.3d 749, 759 (8th Cir. 1998), cert. denied, 525 U.S. 1166

(1999); Murray v. United States, 145 F.3d 1249, 1251

(11th Cir. 1998); In re Certificates of Appealability, 106

F.3d 1306, 1308 (6th Cir. 1997).

If the district court declines to issue any COA at all

and the Section 2255 movant fails to make an express

request to a circuit judge for a COA, the plain language

of Federal Rule of Appellate Procedure 22(b) provides

that a notice of appeal constitutes a request to the court

of appeals for a COA as to all issues raised in the

Section 2255 motion. Fed. R. App. P. 22(b)(1) & (2);

Slack v. McDaniel, 529 U.S. 478, 483 (2000); Buz, 170

F.3d at 237. Rule 22(b), however, does not expressly

address whether a notice of appeal serves as a request

to the court of appeals to expand a COA granted by the

district court to cover issues that the district court

declined to certify. The courts of appeals have taken

differing views on the answer to that question. See

Jones v. United States, 224 F.3d 1251, 1256 (11th Cir.

2000) (noting different approaches and declining to

decide the issue).

8

The Sixth, Seventh, and Tenth Circuits have chosen

to treat a notice of appeal as a constructive request to

review the district court’s partial denial of certification.

See Ross v. Ward, 165 F.3d 793, 797 (10th Cir.), cert.

denied, 528 U.S. 887 (1999); Kincade v. Sparkman, 117

F.3d 949, 953 (6th Cir. 1997); Porter v. Gramley, 112

F.3d 1308, 1312 (7th Cir. 1997), cert. denied, 522 U.S.

1093 (1998). Other courts of appeals have declined to do

so and instead require a specific request in the court of

appeals to expand the certificate. See Bui, 170 F.3d at

237 (1st Cir.); United States v. Kimler, 150 F.3d 429,

430 (5th Cir. 1998); United States v. Zuno-Arce, 209

F.3d 1095, 1099-1101 (9th Cir. 2000); 3d Cir. R. 22.1(b).

Three of those circuits have adopted local rules that

specify the procedure that a Section 2255 movant who

has been granted a limited COA should follow in order

to request an expanded COA from the court of appeals.

See Ist Cir. R. 22.1(c);? 3d Cir. R. 22.1(b);? 9th Cir.

2 In the First Circuit, after the district court’s partial denial of

a COA, the “petitioner must apply promptly, within the time set

by the clerk of the court of appeals, to the court of appeals for an

expanded [COA].” 1st Cir. R. 22.1(c) (reproduced at Pet. App. E1-

E2). The circuit rule further specifies:

If the petitioner fails to apply for an expanded [COA] within

the time designated by the clerk, the appeal will proceed only

with respect to the issues on which the district court has

granted a certificate; this court will not treat an inexplicit

notice of appeal, without more, as a request for a [COA] with

respect to issues on which the district court has denied a

certificate.

Ibid.

3 The Third Circuit’s rule provides:

If the district court grants a [COA] as to only some issues, the

court of appeals will not consider uncertified issues unless

petitioner first seeks, and the court of appeals grants,

9

R. 22-1(d).* The court of appeals in this case followed

the Ninth Circuit’s local rule and declined consideration

of issues outside the district court’s COA. |

Petitioner contends (Pet. 8, 12, 13-17) that this

Court’s review is necessary to establish a uniform pro-

cedure to be followed by all the courts of appeals.

There is, however, no need for plenary review by this

Court in order to establish a uniform procedure. The

courts of appeals have supervisory authority to struc-

ture discretionary procedures to govern appellate

certification of additional issues. Petitioners desiring certifi-

cation of additional issues must file, in the court of appeals, a

separate motion for additional certification, along with a

.. statement of the reasons why a certificate should be granted

as to any issue(s) within 21 days of the docketing of the appeal

in the court of appeals. * * * Ifthe motions panel denies the

motion to certify additional issues, the parties may brief only

the issues certified. The merits panel may direct briefing of

any additional issues it wishes to consider.

3d Cir. R. 22.1(b) (reproduced at Pet. App. E2).

4 As noted above, the Ninth Circuit’s rule provides:

If the district court denies a [COA] in part, the court of appeals

will not consider uncertified issues unless petitioner first

seeks, and the court of appeals grants, broader certification.

Petitioners desiring broader certification must file, in the court

of appeals, a separate motion for broader certification, along

with a statement of reasons why a certificate should be

granted as to any issues(s) within thirty-five days of the

district court’s entry of its order denying a [COA]. Re-

spondent may file an opposition within thirty-five days of the

date petitioner’s motion is served. If a motion for broader

certification is filed in a capital case where an execution date is

scheduled and no stay is in place, respondent shall file a re-

sponse as soon as practicable after service of the motion.

Otherwise, respondent shall file a response within thirty-five

days of the date petitioner’s motion is served.

9th Cir. R. 22-1(d) (reproduced at Pet. App. E4).

10

practice within their jurisdictions. See Ortega-

Rodriguez v. United States, 507 U.S. 234, 251 n.24

(1993). The existence of different rules of procedure in

different circuits does not pose a problem, because liti-

gants, attorneys, and district courts within each circuit

can ascertain the applicable local rule and adhere to it.

Ninth Circuit Rule 22-1 clearly provides that a Section

2255 movant who has received only a partial COA from

the district court is required to move the court of

appeals for an expanded COA. That rule was promul-

gated on January 1, 1999. See United States v.

Christakis, 238 F.3d 1164, 1168 n.5 (9th Cir. 2001). The

district court ruled on petitioner’s request for a COA on

April 26, 2001, nearly two and one-half years after the

promulgation of the rule. There is therefore no un-

fairness in holding petitioner to the rule.

Furthermore, the difference in approach among the

courts of appeals is more a matter of form than sub-

stance. Petitioner cites no case, and we are aware of

none, in which a court of appeals has held that it lacks

the power to expand on its own initiative the issues that

it will consider on appeal when the Section 2255 movant

has filed a general notice of appeal and briefed uncerti-

fied issues. Indeed, the Third Circuit’s local rule re-

quiring a movant who seeks broader certification “to

file a motion within 21 days of docketing the appeal”

explicitly provides that “[t]he merits panel may direct

briefing of any additional issues it wishes to consider.”

3d Cir. R. 22.1(b). And the First and Ninth Circuit

rules do not preclude a merits panel from exercising its

discretion to grant an expanded COA in order to con-

sider an issue that it deems worthy of appellate review.

Therefore, the different procedural approaches of the

courts of appeals are unlikely to affect the outcome of

many cases. In the event that the difference in ap-

11

proach were to become problematic or unfair, the ap-

propriate response would be amendment of the Federal

Rules of Appellate Procedure to address the issue,

rather than resolution of the issue by this Court in the

exercise of its certiorari authority.

Petitioner also errs in contending (Pet. 8, 11, 12-13)

that the court of appeals’ requirement that he move for

an expanded certificate conflicts with this Court’s

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

Petitioner’s contention rests on a misinterpretation of

Slack.

The petitioner in Slack sought review of a habeas

petition that he had filed in district court before the

effective date of the AEDPA but had appealed after

that date. See 529 U.S. at 481-482. The district court

had treated his notice of appeal as a request for a certi-

ficate of probable cause (CPC), the pre-AEDPA pre-

cursor to a COA, and had denied the CPC. The court of

appeals had likewise denied a CPC. See id. at 480. This

Court held that the COA requirement of the AEDPA,

rather than the pre-AEDPA CPC requirement, applied

because the petitioner had filed his notice of appeal

after the AEDPA’s effective date. Jd. at 478, 482. The

Court then stated that, because the petitioner had not

requested a COA, the court of appeals “should have

treated [petitioner’s] notice of appeal as an application

for a COA” under Federal Rule of Appellate Procedure

22(b). 529 U.S. at 483. The Court thereafter addressed

the standard that the court of appeals should have

applied to determine whether the petitioner was en-

titled toa COA. Id. at 483-490.

Petitioner argues that Slack requires a court of ap-

peals to treat a notice of appeal as a request for an ex-

panded COA when the district court has granted only a

limited COA. The Court in Slack, however, had no

12

occasion to address that question. As noted above, the

petitioner in Slack had not filed a request for a certi-

ficate, and both the district court and the court of

appeals had denied him a certificate on any issue. This

Court’s discussion therefore dealt solely with the pro-

cedure when “no express request for a certificate is

filed,” a situation addressed directly by Federal Rule of

Appellate Procedure 22(b)(2). The Court did not

discuss the situation that is presented by this case and

is not addressed by Rule 22(b)—when the petitioner

has requested and received a COA, but the COA is

limited to certain issues.

Petitioner also claims (Pet. 6-7, 14-16) that the Ninth

Circuit’s decision here conflicts with its decision in Solis

v. Garcia, 219 F.3d 922 (2000), cert. denied, 122 S. Ct. 94

(2001). Any conflict between those two decisions should

be resolved by the court of appeals rather than this

Court. See United States v. Wisniewski, 353 U.S. 901

(1957) (per curiam). In any event, there is no conflict.

The court in Solis did treat the petitioner’s brief,

which addressed issues beyond the scope of the COA

that he had received from the district court, as a

request to expand the COA. See 219 F.3d at 926. The

court did not, however, discuss Rule 22-1. Moreover,

the district court in Solis had granted the limited COA

more than 35 days before the effective date of Rule 22-

1, so it was not practicable for the petitioner to comply

with the rule. See United States v. Zuno-Arce, 245

F.3d 1108, 1109 & n.2 (9th Cir. 2001) (Browning, C.J.,

dissenting). Solis is thus merely an implicit decision

not to apply Rule 22-1 to an appeal initiated before its

effective date. See zbid. As noted above, petitioner’s

appeal was initiated more than two years after Rule 22-

l’s effective date. Solis is therefore inapposite. See

Christakis, 238 F.3d at 1168 n.5 (“The district court

13

granted Christakis’s partial COA on February 23, 1999,

almost two months after the effective date of Circuit

Rule 22-1. Christakis failed to file a motion to broaden

the certificate within 35 days, so this appeal should be

confined to the sole issue [contained in the COA].”).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

MICHAEL CHERTOFF

Assistant Attorney General

KARIN B. HOPPMANN

Attorney

NOVEMBER 2002