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Lavin v. Hulick

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


January 24, 2007

JOHN LAVIN, PETITIONER,
v.
WARDEN HULICK, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Murphy, Chief District Judge

APPEAL No. 07-1091

MEMORANDUM AND ORDER

Following the dismissal of his habeas corpus petition, in which he challenged a disciplinary proceeding resulting in the loss of good conduct credit, Petitioner appealed, and he now seeks issuance of a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1) (Doc. 13).

The Seventh Circuit has held that a prisoner does not need a certificate of appealability to appeal a disciplinary board decision because such a decision "does not arise from process issued by a state court." Walker v. O'Brien, 216 F.3d 626, 638 (7th Cir. 2000). Other circuits have held otherwise. See, e.g., Madley v. United States Parole Commission, 278 F.3d 1306, 1309-10 (D.C. Cir. 2002); Greene v. Tennessee Department of Corrections, 265 F.3d 369, 371-72 (6th Cir. 2001); Coady v. Vaughn, 251 F.3d 480, 486 (3d Cir. 2001); Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000); Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998); Hallmark v. Johnson, 118 F.3d 1073, 1076-77 (5th Cir. 1997). However, the Seventh Circuit has yet to reconsider its position, despite "[t]his internal contradiction." Moffat v. Broyles, 288 F.3d 978, 980 (7th Cir. 2002). See also Anderson v. Benik, - F.3d - , 2006 WL 3734428 (7th Cir. 2006).

Therefore, because the Seventh Circuit does not require a certificate of appealability in this situation, the instant motion is DENIED as moot.

IT IS SO ORDERED.

G. PATRICK MURPHY Chief United States District Judge

20070124

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