(HC) Rockett v. Lepe ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 JAMES ROCKETT, No. 1: 20-cv-00945-NONE-JDP (HC) 11 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS 12 v. PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE, 13 LEPE, et. al., DIRECTING THE CLERK OF COURT TO ASSIGN DISTRICT JUDGE AND CLOSE 14 Respondent. CASE, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 15 (Doc. No. 5) 16 17 Petitioner James Rockett, a federal prisoner, has petitioned the court in propria persona 18 for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner seeks habeas relief in 19 connection with certain actions allegedly taken by the Bureau of Prisons (“BOP”), namely the 20 search of his cell and his placement in a special housing unit while he was awaiting a prison 21 disciplinary hearing. (Doc. Nos. 1; 5 at 2.) This action was referred to a United States Magistrate 22 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. After a preliminary review 23 under Rule 4 of the Rules Governing Section 2254, on July 15, 2020, the assigned magistrate 24 judge issued findings and recommendations recommending dismissal of the petition based upon 25 the conclusion that “[b]ecause petitioner’s claims turn on the conditions of his confinement,” as 26 opposed to his custody, “this court has no subject matter jurisdiction over the petition under 27 ///// 28 ///// 1 § 2241.”1 (Doc. No. 5 at 2.) Petitioner was provided thirty days to file any objections to the 2 findings and recommendations. (Id. at 6.) To date, petitioner has not filed any objections. 3 Having reviewed the pending findings and recommendations de novo pursuant to 28 4 U.S.C. § 636 (b)(1)(C), the court finds that the magistrate judge’s findings and recommendations 5 are supported by the record and proper analysis and will adopt them in full. 6 In addition, the court must consider whether to issue a certificate of appealability. When a 7 court dismisses a petition for a writ of habeas corpus, it may only issue a certificate of 8 appealability when “the applicant has made a substantial showing of the denial of a constitutional 9 right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 10 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 11 been resolved in a different manner or that the issues presented were ‘adequate to deserve 12 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 13 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In the present case, petitioner has not made the 14 required substantial showing. The court is not persuaded that reasonable jurists would find the 15 court’s determination that petitioner is not entitled to federal habeas corpus relief wrong or 16 debatable, or that they would conclude petitioner deserves encouragement to proceed further. 17 The court therefore declines to issue a certificate of appealability. 18 Accordingly, the court orders as follows: 19 1. The findings and recommendations, filed on July 15, 2020 (Doc. No. 5), is 20 ADOPTED in full; 21 2. The petition for writ of habeas corpus (Doc. No. 1) is DISMISSED; 22 3. The court DECLINES to issue a certificate of appealability; and 23 ///// 24 ///// 25 ///// 26 27 1 Due to the lack of jurisdiction, the magistrate judge also found that the court could not grant other reliefs, such as injunctive relief and discovery of certain information, as requested by 28 petitioner. (Doc. No. at 4–6.) wOAOe LOVE SIT AEE MMO OO IO er VM VI 1 4. The Clerk of Court is DIRECTED to assign a district judge to this case for the 2 purpose of closing the case and then to enter judgment and close the case. 3 | IT IS SO ORDERED. a " 4 Li. wh F Dated: _ September 8, 2020 Sea 1" S098 5 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28