Edward Ontiveros v. R. Subia

404 F. App'x 142

Opinion

MEMORANDUM **

California state prisoner Edward G. Ontiveros appeals pro se from the district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253 1 , and we affirm.

The district court did not err in dismissing Ontiveros’ habeas petition for lack of jurisdiction. The district court correctly concluded that Ontiveros could not proceed under § 2254 because he received only a “counseling chrono” and did not lose any sentencing credit as a result of the disciplinary decision. See Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir.2003) (stating that “habeas jurisdiction is absent, and a § 1983 action proper, where a successful challenge to a prison condition will not necessarily shorten the prisoner’s sentence.”)

Ontiveros’ Rule 60(b) motion, filed on October 7, 2010, is construed in part as a renewed motion for appointment of counsel, and in part as a request for judicial notice. The request for judicial notice is granted. The requests for oral argument and appointment of counsel are denied.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 . We certify for appeal, on our own motion, the issue of whether the district court properly dismissed Ontiveros' petition for lack of jurisdiction.