(HC) Marshall v. Department of the Treasury Internal Revenue Service ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GERALD MARSHALL, No. 1:21-cv-00859-NONE-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND 13 RECOMMENDATIONS AND DISMISSING PETITION FOR WRIT OF HABEAS 14 v. CORPUS 15 (Doc. No. 3) 16 DEPARTMENT OF THE TREASURY, 17 INTERNAL REVENUE SERVICE, 18 Respondent. 19 20 Petitioner Gerald Marshall is confined at Atascadero State Hospital and proceeding pro se 21 and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. 22 This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 23 636(b)(1)(B) and Local Rule 302. 24 On June 2, 2021, the assigned magistrate judge issued findings and recommendations, 25 recommending that the petition be dismissed. (Doc. No. 3.) Those findings and 26 recommendations were served upon all parties and contained notice that any objections thereto 27 were to be filed within twenty-one (21) days after service. (Id. at 2–3.) No objections have been 28 filed, and the deadline to do so has expired. 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 2 | de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 3 | magistrate judge’s findings and recommendations are supported by the record and proper 4 | analysis. 5 Further, the court notes that a certificate of appealability is not required because this 6 | habeas action is proceeding pursuant to 28 U.S.C. § 2241 thus is not a habeas proceeding in 7 | which the detention complained of arises out of process issued by a state court. Forde v. U.S. 8 | Parole Commission, 114 F.3d 878 (9th Cir. 1997) (citing Ojo v. INS, 106 F.3d 680, 681-682 (Sth 9 | Cir. 1997), and Bradshaw vy. Story, 86 F.3d 164, 166 (10th Cir. 1996)). 10 Accordingly, 11 1. The findings and recommendations issued on June 2, 2021, (Doc. No. 3), are 12 adopted in full; 13 2. The petition for writ of habeas corpus is dismissed; 14 3. The Clerk of the Court is directed to assign a district judge to this case for the 15 || purpose of closing the case and then to close the case; and 16 4. In the event a notice of appeal is filed, no certificate of appealability is required. 17 | IT IS SO ORDERED. si □ Dated: _ October 11, 2021 Yole A Lange 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28