Opinion
CIVIL ACTION NO. 5:01-CV-120-C USCA #03-10823
September 23, 2003
ORDER
A one-sentence "Notice of Appeal" has been filed in the captioned action in which the District Court has entered a final order in a proceeding pursuant to 28 U.S.C. § 2254. Petitioner is not proceeding Pro se and his counsel has not requested a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A) (stating that an appeal may not be taken to the court of appeals from a final order in a habeas proceeding which complains about detention by a state unless a circuit justice or judge issues a certificate of appealability). Cf. United States v. Orozco, 103 F.3d 389, 392 (5th Cir. 1996) (providing that a notice of appeal by a pro se petitioner may be construed as a request for a certificate of appealability).
The Court notes that its Order dated August 4, 2003, inadvertently stated that Petitioner was proceeding pro se. Petitioner's original petition and his notice of appeal were clearly filed by counsel and Petitioner has paid the appellate filing fee.
Accordingly, the Court finds that Petitioner should file his request for a certificate of appealability on or before October 14, 2003. See 28 U.S.C. § 2253(b)(2) ("The certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.").
SO ORDERED.