IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 2, 2009
NICHOLAS B. GARCIA, PETITIONER,
D.K. SISTO, RESPONDENT.
The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge Sitting by Designation
On November 24, 2008, Petitioner Nicholas B. Garcia ("Petitioner") filed a Notice of Appeal. (Doc. 25). On December 8, 2008, Petitioner received notice, vis-á-vis CM-ECF, that a certificate of appealability is required to appeal this Court's order and judgment denying habeas corpus relief. (Doc. 28 at 1). Petitioner, through counsel, advised the Clerk's Office that this Court did not need to certify Petitioner's appeal because the issues raised only challenge the propriety of a prison disciplinary violation. (Id.).
Federal habeas petitioners are required to obtain a certificate of appealability to appeal a denial of habeas corpus relief where "the detention complained of arises out of process issued by a State court." 28 U.S.C. 2253(c)(1)(A). The Ninth Circuit has held "that a certificate of appealability 'is not required when a state prisoner challenges an administrative decision regarding the execution of his sentence.'" Rosas v. Nielsen, 428 F.3d 1229, 1231 (9th Cir. 2005) (per curiam) (quoting White v. Lambert, 370 F.3d 1002, 1010 (9th Cir. 2004), cert. denied, ---U.S. ----, 125 S.Ct. 503 (2005)). District courts, therefore, must consider "who made 'the detention decision complained of by the state prisoner,' an administrative body or a judicial one, in determining whether a certificate of appealability is required." Rosas at 1231 (quoting White, 370 F.3d at 1010).
On appeal, Petitioner only challenges an administrative decision. Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court process Petitioner's appeal without the issuance of a certificate of appealability.
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