FILED
NOT FOR PUBLICATION NOV 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EDWARD G. ONTIVEROS, No. 09-15660
Petitioner - Appellant, D.C. No. 2:07-cv-02456-GEB
v. MEMORANDUM *
R. J. SUBIA; ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA;
EDMUND G. BROWN, Jr.,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Submitted November 16, 2010 **
Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges.
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
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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.
1
We certify for appeal, on our own motion, the issue of whether the district
court properly dismissed Ontiveros’ petition for lack of jurisdiction.
2 09-15660