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Lavin v. Hulick

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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