97 Cal. Daily Op. Ser v. 4210, 97 Daily Journald.a.r. 7042stephen Charles Forde, Petitioner-appellant, v. U.S. Parole Commission, Respondent-appellee, 114 F.3d 878 (9th Cir. 1997)

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.