William Driver v. Adrian Garcia , 670 F. App'x 284 ( 2016 )

Case: 15-20403 Document: 00513745424 Page: 1 Date Filed: 11/03/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-20403 FILED
Summary Calendar November 3, 2016
Lyle W. Cayce
Clerk
WILLIAM DRIVER,
Petitioner-Appellant
v.
ADRIAN GARCIA, Sheriff, Harris County, Texas,
Respondent-Appellee
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CV-857
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
William Driver appeals the district court’s dismissal of his 28 U.S.C.
§ 2241 petition under the doctrine of Younger 1 abstention. The district court
did not rule on the issue of whether a certificate of appealability (COA) should
be granted, and Driver did not expressly request a COA in the district court or
on appeal.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
1 Younger v. Harris, 401 U.S. 37 (1970).
Case: 15-20403 Document: 00513745424 Page: 2 Date Filed: 11/03/2016
No. 15-20403
A COA is required to appeal “the final order in a habeas corpus
proceeding in which the detention complained of arises out of process issued
by a State court.” 28 U.S.C. § 2253(c)(1)(A). Although Driver has been released
on bond, he remains “in custody” for purposes of § 2241. See Justices of Boston
Mun. Court v. Lydon, 466 U.S. 294, 300-01 (1984). While a prisoner in federal
custody need not obtain a COA to appeal the denial of a § 2241 petition, a
prisoner in state custody, such as Driver, must do so. See Stringer v. Williams,
161 F.3d 259, 262 (5th Cir. 1998) (“[Section] 2253 clearly does not encompass
challenges to federal detention under § 2241. Just as clearly, however, § 2253
does encompass challenges to state detention under § 2241[.]”).
Even if we construe Driver’s notice of appeal as a request for a certificate
of appealability in our court under Federal Rule of Appellate Procedure
22(b)(2), we normally would remand such requests to the district court in the
first instance. See United States v. Ubani, 582 F. App’x 333, 333 (5th Cir.
2014). We decline to do so here, however, because we conclude any such
remand would be futile. Driver fails to meet the standards for a COA as
reasonable jurists would not debate the district court’s disposition of his case.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, we decline to
remand this case, and we refuse to issue a COA ourselves.
APPEAL DISMISSED.
2