(HC) Reid v. Lake ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH ROSHAUN REID, Case No. 1:19-cv-00244-AWI-EPG-HC 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATION, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 S. LAKE, TO CLOSE CASE, AND DECLINING TO ISSUE A CERTIFICATE OF 15 Respondent. APPEALABILITY 16 (ECF No. 6) 17 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2241. On April 1, 2019, the Magistrate Judge issued Findings and 19 Recommendation that recommended dismissing the petition because Petitioner failed to meet the 20 criteria to bring a § 2241 habeas petition under the escape hatch or savings clause of 28 U.S.C. 21 § 2255(e) and any relief pursuant to the First Step Act should be sought in the sentencing court. 22 (ECF No. 6). The sentencing court is United States District Court for the District of South 23 Carolina, not this Court. Petitioner filed timely objections. (ECF No. 7). Petitioner also filed 24 supplements to his petition. (ECF Nos. 8, 9). 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted 26 a de novo review of the case. Having carefully reviewed the entire file, including Petitioner’s 27 objections, the Court concludes that the Findings and Recommendation is supported by the record and proper analysis. 1 “Where a petition purportedly brought under § 2241 is merely a ‘disguised’ § 2255 2 motion, the petitioner cannot appeal from the denial of that petition without a [certificate of 3 appealability].” Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008). The controlling statute in 4 determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as 5 follows: 6 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to 7 review, on appeal, by the court of appeals for the circuit in which the proceeding is held. 8 (b) There shall be no right of appeal from a final order in a 9 proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a 10 criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings. 11 (c) (1) Unless a circuit justice or judge issues a certificate of 12 appealability, an appeal may not be taken to the court of appeals from– 13 (A) the final order in a habeas corpus proceeding in which 14 the detention complained of arises out of process issued by a State court; or 15 (B) the final order in a proceeding under section 2255. 16 (2) A certificate of appealability may issue under paragraph (1) 17 only if the applicant has made a substantial showing of the denial of a constitutional right. 18 (3) The certificate of appealability under paragraph (1) shall 19 indicate which specific issue or issues satisfy the showing required by paragraph (2). 20 21 To obtain a certificate of appealability under § 2253(c), a petitioner “must make a 22 substantial showing of the denial of a constitutional right, . . . includ[ing] showing that 23 reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 24 been resolved in a different manner or that the issues presented were ‘adequate to deserve 25 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 483–84 (2000) (quoting 26 Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). 27 In the present case, the Court finds that reasonable jurists would not find the Court’s 1 | wrong or that Petitioner should be allowed to proceed further. Therefore, the Court declines to 2 | issue a certificate of appealability. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. The Findings and Recommendation issued on April 1, 2019 (ECF No. 6) is 5 ADOPTED; 6 2. The petition for writ of habeas corpus is DISMISSED without prejudice to Petitioner 7 filing any appropriate motion for sentence reduction in the sentencing court; 8 3. The Clerk of Court is directed to CLOSE the case; and 9 4. The Court DECLINES to issue a certificate of appealability. 10 i IT IS SO ORDERED. 2a □□ ~_-SENIOR DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28