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Ontiveros v. Subia

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


October 6, 2010

EDWARD ONTIVEROS, PETITIONER,
v.
R.J. SUBIA, ET AL., RESPONDENTS.

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

ORDER

Petitioner, a state prisoner proceeding pro se, timely filed a notice of appeal of this court's March 13, 2009 dismissal of his application for a writ of habeas corpus. At the time the notice of appeal was filed, circuit authority held that a certificate of appealability was not necessary for appeals from administrative decisions; the petition in this case challenges the result of a disciplinary hearing. White v. Lambert, 370 F.3d 1002 (9th Cir. 2004). White was overruled in Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc). The Ninth Circuit has now remanded the case to this court for the limited purpose of granting or denying a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

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).

For the reasons set forth in the magistrate judge's February 9, 2009 findings and recommendations, petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, a certificate of appealability should not issue in this action.

IT IS SO ORDERED.

20101006

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