(HC) Brown v. Warden of U.S.P. Atwater ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JABORIE BROWN, Case No. 1:20-cv-00233-AWI-SAB-HC 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATION, GRANTING 13 v. RESPONDENT’S MOTION TO DISMISS, DISMISSING PETITION AND 14 WARDEN OF U.S.P. ATWATER, SUPPLEMENTAL PETITIONS FOR WRIT OF HABEAS CORPUS, DIRECTING 15 Respondent. CLERK OF COURT TO CLOSE CASE, AND DECLINING TO ISSUE A 16 CERTIFICATE OF APPEALABILITY 17 (ECF Nos. 1, 14, 22, 23, 25) 18 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2241. This matter was referred to a United States Magistrate Judge 20 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On June 1, 2021, the Magistrate Judge issued Findings and Recommendation 22 recommending that Respondent’s motion to dismiss be granted and the petition and supplemental 23 petitions for writ of habeas corpus be dismissed for lack of jurisdiction as Petitioner failed to 24 satisfy the criteria to bring a § 2241 petition pursuant to the escape hatch of 28 U.S.C. § 2255(e). 25 (ECF No. 25). The Findings and Recommendation was served the parties and contained notice 26 that any objections were to be filed within thirty (30) days of the date of service of the Findings 27 and Recommendation. To date, no objections have been filed, and the time for doing so has passed. 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted 2 a de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 3 the Findings and Recommendation is supported by the record and proper analysis. 4 “Where a petition purportedly brought under § 2241 is merely a ‘disguised’ § 2255 5 motion, the petitioner cannot appeal from the denial of that petition without a [certificate of 6 appealability].” Harrison, 519 F.3d at 958. The controlling statute in determining whether to 7 issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows: 8 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to 9 review, on appeal, by the court of appeals for the circuit in which the proceeding is held. 10 (b) There shall be no right of appeal from a final order in a 11 proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a 12 criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings. 13 (c) (1) Unless a circuit justice or judge issues a certificate of 14 appealability, an appeal may not be taken to the court of appeals from– 15 (A) the final order in a habeas corpus proceeding in which 16 the detention complained of arises out of process issued by a State court; or 17 (B) the final order in a proceeding under section 2255. 18 (2) A certificate of appealability may issue under paragraph (1) 19 only if the applicant has made a substantial showing of the denial of a constitutional right. 20 (3) The certificate of appealability under paragraph (1) shall 21 indicate which specific issue or issues satisfy the showing required by paragraph (2). 22 23 A court should issue a certificate of appealability if “reasonable jurists could debate 24 whether (or, for that matter, agree that) the petition should have been resolved in a different 25 manner or that the issues presented were ‘adequate to deserve encouragement to proceed 26 further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 27 880, 893 & n.4 (1983)). In the present case, the Court finds that reasonable jurists would not find 1 | that Petitioner should be allowed to proceed further. Therefore, the Court declines to issue a 2 | certificate of appealability. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. The Findings and Recommendation issued on June 1, 2021 (ECF No. 25) is 5 ADOPTED IN FULL; 6 2. Respondent’s motion to dismiss (ECF No. 23) is GRANTED; 7 3. The petition and supplemental petitions for writ of habeas corpus (ECF Nos. 1, 14, 8 22) are DISMISSED; 9 4. The Clerk of Court is directed to CLOSE the case; and 10 5. The Court DECLINES to issue a certificate of appealability. 11 Db IT IS SO ORDERED. 13 | Dated: _July 26, 2021 —. 7 LZ : Rh ed SENIOR DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28