Opinion
This case has been referred to the undersigned for all purposes pursuant to 28 U.S.C. § 636(c).(See Notice of Case Assignment #9).
December 13, 2001
ORDER ON PETITION FOR CERTIFICATE OF APPEALABILITY (#20)
The Court dismissed petitioner Lloyd Mathews' ("Mathews") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in a Memorandum and Order issued on October 25, 2001 (#18) and judgment entered on that same date (#19). On November 21, 2001, Mathews filed a Petition for Certificate of Appealability (#20) requesting that the Court issue a certificate of appealability ("COA") which would allow him to appeal the Court's dismissal. In support of the prayer for a COA, he filed a memorandum of law (#21).
Mathews' petition for a writ of habeas corpus was properly filed pursuant to 28 U.S.C. § 2241 (rather than 28 U.S.C. § 2254 or § 2255) because he was seeking relief from a deportation order entered against him. The courts that have addressed the issue have held that a petitioner need not obtain a COA when he is appealing the denial of a properly filed habeas petition under 28 U.S.C. § 2241. See Jeffers v. Chandler, 253 F.3d 827, 830 (5 Cir., 2001) (citing Ojo v. INS, 106 F.3d 680, 681-82 (5 Cir., 1997))("Because he is proceeding under § 2241, [the petitioner] need not obtain a COA."); Behr v. Ramsey, 230 F.3d 268, 270 (7 Cir., 2000) ("no certificate of appealability is required in proper § 2241 cases. . . ."); Forde v. U.S. Parole Comm'n, 114 F.3d 878, 879 (9 Cir., 1997) ("The plain language of section § 2253(c)(1) [the statute governing appeals of habeas actions] 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."); Anderson v. Hemingway, No. 01-CV-73295, 2001 WL 1219082, *3 (E.D.Mich., Sept. 27, 2001) (citing King v. U.S., 124 F.3d 198, 1997 WL 580776, *2 (6 Cir., 1997))("Because a certificate of appealability is not needed to appeal the denial of a habeas petition filed under § 2241 . . ., Petitioner need not apply for one. . . ."). While it appears that the First Circuit has not addressed the issue, it seems clear that the circuits that have looked at the issue have consistently held that a COA is not necessary in a case in which a petitioner is trying to appeal the denial of a habeas petition filed under § 2241. Thus, in the instant case, the Court finds that Mathews need not obtain a COA in order to appeal.
Mathews is currently serving a State prison sentence in Walpole, Massachusetts. The Immigration and Naturalization Service ("INS") obtained a deportation order against him in connection with the convictions for which he is currently serving time. Mathews' petition for a writ of habeas corpus did not challenge his State convictions or the conditions of his confinement in State prison but challenged the deportation order obtained by the INS.
Accordingly, it is ORDERED that Mathews' Petition for Certificate of Appealability (#20) be, and the same hereby is, DENIED as drafted. However, the Clerk is directed to treat the Petition for Certificate of Appealability (#20) as a Notice of Appeal by Mathews from the Judgment entered October 25, 2001 dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and to take the steps necessary to process the appeal.