Asrar

United States v. Asrar

Good Law
108 F.3d 217·97 Daily Journal DAR 2291·1997 WL 85792·1997 U.S. App. LEXIS 3683·97 Cal. Daily Op. Serv. 1554
United States Court of Appeals for the Ninth CircuitMarch 3, 1997No. 96-56805California597 words

Opinion

Lead Opinion

ORDER

On November 20,1996, Rafat Asrar timely filed a notice of appeal from the district court’s denial of his 28 U.S.C. § 2255 motion. Asrar did not request, nor has he received, a *218 certificate of appealability from either the district court or this court.

Section 102 of the Antiterrorism and Effective Death Penalty Act of 1996 (“the AED-PA”), Pub.L. No. 104 — 132, 110 Stat. 1214 , requires that “a circuit justice or judge” issue a certificate of appealability for an appeal to be taken from the final order in a 28 U.S.C. §§ 2254 or 2255 proceeding. 28 U.S.C. § 2253 (e)(1). 1 Section 103 of the AEDPA amends Federal Rule of Appellate Procedure 22(b) and establishes the procedure for granting or denying a certificate in sections 2254 and 2255 proceedings.

The phrase “circuit justice or judge” contained in 28 U.S.C. § 2253 (c)(1) raises the question of whether the AEDPA places the authority to issue certificates of appealability in sections 2254 and 2255 proceedings exclusively with the court of appeals. In Hunter v. United States, 101 F.3d 1565 (11th Cir.1996) (en banc) (order), the Eleventh Circuit Court of Appeals addressed this question in an extended analysis. We agree…

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