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Stephen Charles FORDE, Petitioner-Appellant, v. U.S. PAROLE COMMISSION, Respondent-Appellee , 114 F.3d 878 ( 1997 )


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  • 114 F.3d 878

    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.

    1

    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.

    2

    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:

    3

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

    4

    (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

    5

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

    6

    28 U.S.C. § 2253(c)(1).

    7

    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.

    8

    The briefing schedule established previously shall remain in effect.