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Ontiveros v. Subia

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 4, 2009

EDWARD ONTIVEROS, PETITIONER,
v.
R.J. SUBIA, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER

Petitioner has filed a timely notice of appeal from this court's March 13, 2009 order granting respondent's motion to dismiss and dismissing this habeas action. Petitioner has requested the issuance of a certificate of appealability. However, in this circuit, under 28 U.S.C. § 2253(c), "a COA is not required when a state prisoner challenges an administrative decision regarding the execution of his sentence." White v. Lambert, 370 F.3d 1002, 1010 (9th Cir. 2004); see also Rosas v. Nielsen, 428 F.3d 1229, 1232 (9th Cir. 2005) (per curiam). As the target of petitioner's habeas petition is an administrative disciplinary decision, not a state court proceeding, no COA is necessary. Id.

IT IS THEREFORE ORDERED that petitioner's request for the issuance of a certificate of appealbility is denied as unnecessary.

20090404

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