holding that a § 2241 petitioner in federal custody need not obtain a COA as a prerequisite to appealSummary of this case from McNeely v. Blanas
Filed June 4, 1997
D.C. No. CV-96-642-ECE
Before: Betty B. Fletcher, Stephen Reinhardt and Ferdinand F. Fernandez, Circuit Judges.
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.
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.