(HC) McBride v. Shinn ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RANDALL MCBRIDE, No. 1:19-cv-00482-DAD-EPG (HC) 12 Plaintiff, 13 v. ORDER DISMISSING HABEAS ACTION, DIRECTING CLERK OF COURT TO CLOSE 14 D. SHINN, CASE, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 15 Defendant. 16 17 On July 23, 2018, petitioner Randall McBride filed a federal habeas petition brought 18 pursuant to 28 U.S.C. § 2241. (Doc. No. 1.) Therein, petitioner challenged his 2016 conviction 19 and sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), 20 and possessing an unregistered firearm, in violation of 26 U.S.C. § 5861(d). On November 5, 21 2019, the court granted respondent’s motion to dismiss the petition and ordered petitioner to 22 notify the court whether he wished to have his § 2241 petition construed as a motion to vacate, set 23 aside, or correct the sentence under 28 U.S.C. § 2255 or to voluntarily dismiss the instant action 24 without prejudice to refiling his clams in a motion brought pursuant to 28 U.S.C. § 2255. (Doc. 25 No. 27 at 2.) 26 To date, petitioner has not filed any notification with the court, and the time provided for 27 doing so has passed. Accordingly, the court will dismiss the instant habeas action without 28 prejudice to petitioner refiling his claims in a motion brought pursuant to 28 U.S.C. § 2255. 1 Having previously found that petitioner is not entitled to habeas relief, the court now turns 2 | to whether a certificate of appealability should issue. See Harrison y. Ollison, 519 F.3d 952, 958 3 | (9th Cir. 2008) (“Where a petition purportedly brought under § 2241 is merely a ‘disguised’ § 4 | 2255 motion, the petitioner cannot appeal from the denial of that petition without a COA.”) 5 | (citing Porter v. Adams, 244 F.3d 1006, 1006-07 (9th Cir. 2001)). A petitioner seeking a writ of 6 | habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an 7 | appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 8 | (2003); 28 U.S.C. § 2253. To obtain a certificate of appealability under 28 U.S.C. § 2253(c), a 9 | petitioner “must make a substantial showing of the denial of a constitutional right, . . . includ[ing] 10 | showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition 11 || should have been resolved in a different manner or that the issues presented were ““adequate to 12 | deserve encouragement to proceed further.”’” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) 13 | (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). In the present case, the court finds 14 | that reasonable jurists would not debate or disagree with the court’s determination that the 15 | pending petition brought pursuant to 28 U.S.C. § 2241 is a disguised motion for relief under § 16 | 2255 that should be dismissed. Nor would reasonable jurists find that petitioner should be 17 | allowed to proceed further. The court therefore declines to issue a certificate of appealability. 18 Accordingly: 19 1. The instant habeas action is dismissed without prejudice to petitioner refiling his 20 claims in a motion brought pursuant to 28 U.S.C. § 2255; 21 2. The Clerk of the Court is directed to close the case; and 22 3. The court declines to issue a certificate of appealability. 23 | IT IS SO ORDERED. me □ Dated: _ January 16, 2020 J aL Al 7 ae 25 UNITED STATES DISTRICT JUDGE 26 27 28