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Evans v. Norwood

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 2, 2009

RANDALL P. EVANS, PETITIONER,
v.
J.L. NORWOOD, RESPONDENT.

The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER REGARDING CERTIFICATE OF APPEALABILITY

Petitioner is a federal prisoner who sought review of a parole deny pursuant to 28 U.S.C. § 2241. Petitioner filed an appeal of the court's denial of Petitioner's petition, and the Clerk of the Court requested the undersigned determine if a certificate of appealability would be issued in this case.

A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, and an appeal is only allowed if the court issues a certificate of appealability. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). However, Petitioner is a federal prisoner. A certificate of appealability is not required to appeal an order denying a section 2241 petition where: (1) the detention complained of does not arise out of a process issued by a state court; or (2) it is not a section § 2255 proceeding. Forde v. U.S. Parole Comm'n, 114 F.3d 878, 879 (9th Cir.1997). However, a successive Section 2255 petition disguised as a Section 2241 petition requires a certificate of appealability. Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001). Because Petitioner sought review of a parole denial, no certificate of appealability is required.

Accordingly, the Clerk of the Court is DIRECTED to process Plaintiff's appeal because no certificate of appealability is needed.

IT IS SO ORDERED.

20090302

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