(HC) Saelua v. Ciolli ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LEVI SAELUA, JR., No. 1:20-cv-01312-NONE-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS 14 CIOLLI, Warden, (Doc. No. 5) 15 Respondent. 16 17 Petitioner Levi Saelua, Jr., is a federal prisoner proceeding in propria persona with a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. On September 16, 2020, the 19 assigned magistrate judge issued findings and recommendations recommending that the pending 20 petition be dismissed. (Doc. No. 5.) The findings and recommendations were served upon all 21 parties and contained notice that any objections were to be filed within twenty-one (21) days from 22 the date of service of that order. (Id. at 6–7.) No party has filed objections, and the deadline to 23 do so has expired. 24 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 25 de novo review of the case. Petitioner’s claim hinges largely on Allen v. Ives, 950 F.3d 1184 (9th 26 Cir. 2020) (“Allen I”), petition for rehearing en banc denied, 976 F.3d 863 (9th Cir. 2020) (“Allen 27 II”). The petition for a rehearing en banc was denied six days after the magistrate judge issued 28 the pending findings and recommendations. As the undersigned has discussed in a separate case, 1 | in that denial, a majority of the judges participating in Allen I clarified that the relevant holding 2 | from its decision in Allen I did not “open|[] the proverbial floodgates” to § 2241 petitions but 3 || instead applied only to certain class of petitioners subject to mandatory sentences. Gonzalez v. 4 | Ciolli, No. 1:20-cv-00724-DAD-SKO (HC), 2021 WL 1016387, at *2—3 (E.D. Cal. Mar. 17, 5 | 2021) (quoting Allen IT, 976 F.3d at 868). Here, as noted by the findings and recommendations, 6 | petitioner was sentenced after the guidelines became advisory in 2005, (Doc. No. 5 at 6), and 7 || petitioner does not contend that a mandatory sentence was imposed in his underlying criminal 8 || case, (see Doc. No. 1). Accordingly, the findings and recommendations reached the correct 9 | conclusion even without the Ninth Circuit’s subsequent clarification. 10 The court notes that in the event an appeal is filed, a certificate of appealability will not be 11 | required because this is an order dismissing a petition for writ of habeas corpus pursuant to 28 12 | U.S.C. § 2241, not a final order in a habeas proceeding in which the detention complained of 13 | arises out of process issued by a state court. Forde v. U.S. Parole Commission, 114 F.3d 878 (9th 14 | Cir. 1997); see Ojo v. INS, 106 F.3d 680, 681-682 (Sth Cir. 1997); Bradshaw v. Story, 86 F.3d 15 | 164, 166 (10th Cir. 1996). 16 Accordingly, 17 1. The findings and recommendations issued September 16, 2020 (Doc. No. 5), are 18 | adopted; 19 2. The petition for writ of habeas corpus is dismissed for lack of jurisdiction; and 20 3. The Clerk of the Court is directed to assign a district judge for purposes of closure 21 | and then to close this case. 22 This order terminates the action in its entirety. In the event a notice of appeal is filed, a 23 || certificate of appealability will not be required. 24 | IT IS SO ORDERED. me □ *5 Dated: _ October 7, 2021 i sl, A i a 26 UNITED STATES DISTRICT JUDGE 27 28