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Forde v. U.S. Parole Commission

United States Court of Appeals, Ninth Circuit
Jun 4, 1997
114 F.3d 878 (9th Cir. 1997)

Summary

holding that a § 2241 petitioner in federal custody need not obtain a COA as a prerequisite to appeal

Summary of this case from McNeely v. Blanas

Opinion

No. 97-55164

Filed June 4, 1997

D.C. No. CV-96-642-ECE

Before: Betty B. Fletcher, Stephen Reinhardt and Ferdinand F. Fernandez, Circuit Judges.


ORDER

The district court denied petitioner Stephen Charles Forde's 28 U.S.C. § 2241 petition for writ of habeas corpus. Forde filed a notice of appeal which the district court construed as a request for a certificate of appealability (COA). The district court denied the request for a COA and referred the request to this court.

We must decide whether 28 U.S.C. § 2253, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996), requires that Forde receive a COA before we may hear his appeal. The new section 2253(c)(1) provides the following:

Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from —

(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or

(B) the final order in a proceeding under section 2255.

28 U.S.C. § 2253(c)(1).

The plain language of section 2253(c)(1) does not require a COA here because this is an appeal from an order denying a 28 U.S.C. § 2241 petition that is not a final order in a habeas proceeding in which the detention complained of arises out of process issued by a State court. See Ojo v. INS, 106 F.3d 680, 681-82 (5th Cir. 1997); Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). Accordingly, the COA request is denied as unnecessary.

The briefing schedule established previously shall remain in effect.


Summaries of

Forde v. U.S. Parole Commission

United States Court of Appeals, Ninth Circuit
Jun 4, 1997
114 F.3d 878 (9th Cir. 1997)

holding that a § 2241 petitioner in federal custody need not obtain a COA as a prerequisite to appeal

Summary of this case from McNeely v. Blanas

holding that a § 2241 petitioner in federal custody need not obtain a certificate of appealability as a prerequisite to appeal

Summary of this case from Brim v. Thompson

finding that a certificate of appealability not required from an order denying a § 2241 petition

Summary of this case from Udom v. U.S. Immigration, Customs Enforcement

concluding that the plain language of 28 U.S.C. § 2253(c) does not require a COA in an appeal from an order denying a § 2241 petition where the detention complained of does not arise out of a process issued by a state court

Summary of this case from United States v. Kwok Chee Kwan
Case details for

Forde v. U.S. Parole Commission

Case Details

Full title:STEPHEN CHARLES FORDE, Petitioner-Appellant, v. U.S. PAROLE COMMISSION…

Court:United States Court of Appeals, Ninth Circuit

Date published: Jun 4, 1997

Citations

114 F.3d 878 (9th Cir. 1997)

Citing Cases

Porter v. Adams

This court has previously concluded that 28 U.S.C. § 2253(c)(1) does not require a COA in an appeal from an…

Zavala v. Copenhaver

Issuance of a certificate of appealability is not addressed in this order because a certificate of…