(HC) Sho v. U.S. Immigration and Custom Enforcement ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MONSURU WOLE SHO, No. 2:21-cv-00654-TLN-AC 12 Petitioner, 13 v. ORDER 14 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., 15 Respondents. 16 17 18 Petitioner Monsuru Wole Sho (“Petitioner”), an inmate in federal custody proceeding pro 19 se, has filed an Emergency Motion for Release from ICE Detention, which the court has 20 construed as an Application for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (See 21 generally ECF Nos. 1, 4.) The matter was referred to a United States Magistrate Judge pursuant 22 to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On April 14, 2021, the magistrate judge issued findings and recommendations herein 24 which were served on all parties and which contained notice to all parties that any objections to 25 the findings and recommendations were to be filed within twenty-one days. (ECF No. 4.) On 26 April 26, 2021, Petitioner filed Objections to Magistrate Judge’s Findings and Recommendations 27 (ECF No. 6), which have been considered by the Court. 28 /// 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304(f), this 2 Court has conducted a de novo review of this case. See McDonnell Douglas Corp. v. Commodore 3 Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982); see 4 also Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). Having reviewed the file under the 5 applicable legal standards, the Court finds the Findings and Recommendations to be supported by 6 the record and by the magistrate judge’s analysis. 7 Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the Court has 8 considered whether to issue a certificate of appealability. Before Petitioner can appeal this 9 decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 10 Where the petition is denied on the merits, a certificate of appealability may issue under 28 11 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 12 constitutional right.” 28 U.S.C. § 2253(c)(2). The Court must either issue a certificate of 13 appealability indicating which issues satisfy the required showing or must state the reasons why 14 such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 15 procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 16 jurists of reason would find it debatable whether the district court was correct in its procedural 17 ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 18 claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 19 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484–85 (2000)). For the reasons set forth in the 20 Findings and Recommendations (ECF No. 4), the Court finds that issuance of a certificate of 21 appealability is not warranted in this case. 22 Accordingly, IT IS HEREBY ORDERED that: 23 1. The Findings and Recommendations issued April 14, 2021 (ECF No. 4), are 24 ADOPTED IN FULL; 25 2. Plaintiff’s Emergency Motion for Release from ICE Detention (ECF No. 1) is 26 DISMISSED for lack of jurisdiction; 27 3. The Court declines to issue the certificate of appealability referenced in 28 U.S.C. § 28 2253; and 1 4. The Clerk of the Court is directed to close this case. 2 IT ISSO ORDERED. 3 DATED: May 20, 2021 ry /) ‘ “ □□ Lu 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28