IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 6, 2010
D. DUSTIN, PETITIONER,
SUBIA, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
Petitioner is a state prison inmate who timely filed a notice of appeal from this court's determination that he had failed to exhaust state remedies before proceeding to federal court to challenge the results of a prison disciplinary proceeding. On October 31, 2008, this court issued an order determining that no certificate of appealablity was necessary for petitioner to pursue his appeal. See White v. Lambert, 370 F.3d 1002, 1004 (9th Cir. 2004) and Rosas v. Nielsen, 428 F.3d 1229, 1231-32 (9th Cir. 2005) (per curiam),
On April 22, 2010, the Court of Appeals overruled portions of these two cases and ruled that a certificate of appealability is required to appeal the denial of a habeas petition which challenges an administrative decision. Hayward v. Marshall, 603 F.3d 546, 554-55 (9th Cir. 2010) (en banc).
On August 4, 2010, the Court of Appeals remanded this case for the limited purpose of granting or denying a certificate of appealability.
A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b).
Where, as here, the petition was dismissed on procedural grounds, a certificate of appealability "should issue if the prisoner can show: (1) 'that jurists of reason would find it debatable whether the district court was correct in its procedural ruling'; and (2) 'that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.'" Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
After careful review of the entire record herein, this court finds that petitioner has not satisfied the first requirement for issuance of a certificate of appealability in this case. Specifically, there is no showing that jurists of reason would find it debatable whether petitioner has exhausted state remedies. Accordingly, a certificate of appealability should not issue in this action.
IT IS SO ORDERED.
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