Sugarman, Neil Paril v. Pitzer, Percy

170 F.3d 1145, 335 U.S. App. D.C. 213, 1999 WL 322747, 1999 U.S. App. LEXIS 5951

Opinion

Opinion for the court filed PER CURIAM.

PER CURIAM:

Appellant, a federal prisoner, filed a habe-as petition pursuant to the provisions of 28 U.S.C. § 2241. The district court dismissed the petition, and this court must now determine whether appeals challenging the dismissal of a habeas petition brought by a federal prisoner pursuant to § 2241 are included within the Antiterrorism and Effective Death Penalty Act’s (AEDPA) certificate of appealability (COA) requirement. We hold that a COA is not required for federal prisoner § 2241 appeals.

Under the AEDPA, a COA is necessary in order to appeal “[t]he final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or ... the final order in a proceeding under section 2255.” See 28 U.S.C. § 2253(c)(1). Section 2253 does not refer to § 2241 claims by federal prisoners.

The circuits that have addressed the issue have held that § 2253’s COA requirement does not apply to § 2241 claims brought by federal prisoners. See McIntosh v. U.S. Parole Commission, 115 F.3d 809, 810 n. 1 (10th Cir.1997) (no COA required for federal prisoner to appeal the denial of § 2241 petition); Fo rde v. U.S. Parole Commission, 114 F.3d 878, 879 (9th Cir.1997) (same); Ojo v. Immigration and Naturalization Service, 106 F.3d 680, 681-82 (5th Cir.1997) (same). See also Ferrante v. U.S. Bureau of Prisons, 990 F.Supp. 367, 375 n. 2 (D.N.J.1998). In light of the plain language of the AEDPA, which omits federal § 2241 petitions from the list of those requiring COAs, we now join in the conclusion that federal § 2241 petitions are excluded from the COA requirement.

The remaining issues pertaining to this appeal are resolved through an unpublished order issued simultaneously with this opinion.