114 F.3d 878 | 9th Cir. | 1997
97 Cal. Daily Op. Serv. 4210, 97 Daily Journal
D.A.R. 7042
Stephen Charles FORDE, Petitioner-Appellant,
v.
U.S. PAROLE COMMISSION, Respondent-Appellee.
No. 97-55164.
United States Court of Appeals,
Ninth Circuit.
June 4, 1997.
Stephen Charles Forde, Los Angeles, CA, pro se, for petitioner-appellant.
Richard E. Drooyan, Assistant United States Attorney, Los Angeles, CA, for respondent-appellee.
Before: FLETCHER, REINHARDT and FERNANDEZ, Circuit Judges.
The district court denied petitioner Stephen Charles Forde' § 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.
