Sholtes v. Spencer

Filing 7

ORDER re: 6 Motion for Certificate of Appealability. The Court denies Petitioner's motion as unnecessary. Signed by Judge Michael M. Anello on 7/31/2018. (rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 18cv1330-MMA (BLM)

ANDREW P. SHOLTES,
Petitioner,

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v.

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ORDER RE: MOTION FOR
CERTIFICATE OF
APPEALABILITY

RICHARD V. SPENCER, Secretary of
the Navy,

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[Doc. No. 6]

Respondent.

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Petitioner Andrew P. Sholtes filed a petition for writ of habeas corpus pursuant to

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Title 28, United States Code, section 2241, challenging the conviction and sentence

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imposed by the United States Navy as the result of a contested general court-martial

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proceeding. See Doc. No. 1. On June 29, 2018, the Court summarily dismissed the

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petition and entered judgment accordingly. See Doc. Nos. 4, 5. Petitioner now moves for

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a certificate of appealability in order to pursue his claims for relief on appeal. See Doc.

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No. 6. However, Title 28, section 2253, as amended by the Anti-Terrorism and Effective

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Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996), does not require

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that Petitioner receive a certificate of appealability in order to appeal. See Forde v.

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United States Parole Comm’n, 114 F.3d 878, 879 (9th Cir. 1997) (citing 28 U.S.C. §

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2253(c)(1)).
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18cv1330-MMA (BLM)

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Section 2253 requires a petitioner to obtain a certificate of appealability only if his

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appeal involves process issued by a state court, i.e., proceedings under Section 2254, or

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appeals from final orders in proceedings under Section 2255. See Harrison v. Ollison,

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519 F.3d 952, 958 (9th Cir. 2008) (“The plain language of § 2253(c)(1) does not require a

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petitioner to obtain a COA in order to appeal the denial of a § 2241 petition.”). No

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certificate of appealability is required because Petitioner seeks to take an appeal from a

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final order denying a Section 2241 petition. See Witham v. United States, 355 F.3d 501,

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504 (6th Cir. 2004) (“[T]he statutory language imposing the certificate-of-appealability

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requirement clearly does not extend to cases where, as in court-martial cases, detention

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arose out of federal process but the proceeding is not under § 2255.”).

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Accordingly, the Court DENIES Petitioner’s motion as unnecessary.

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IT IS SO ORDERED.

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DATE: July 31, 2018

_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

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18cv1330-MMA (BLM)