(HC) Brown v. Ciolli ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JABORIE BROWN, No. 1:21-cv-00629-NONE-EPG-HC 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATION, DISMISSING 14 A. CIOLLI, PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 15 Respondent. TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 16 (Doc. No. 6) 17 18 19 Petitioner Jaborie Brown is a federal prisoner proceeding pro se with a petition for writ of 20 habeas corpus purportedly brought pursuant to 28 U.S.C. § 2241. Petitioner contends that he has 21 not received proper credit for time served prior to his sentencing because his sentence was to run 22 run consecutively rather than concurrently to another sentence imposed upon him in a different 23 matter. (See Doc. No. 1.) This matter was referred to a United States Magistrate Judge pursuant 24 to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 25 On May 13, 2021, the assigned magistrate judge issued findings and recommendations 26 recommending that the petition for writ of habeas corpus be dismissed for lack of jurisdiction. 27 (Doc. No. 6.) The magistrate judge found that petitioner’s assertion that he is challenging the 28 calculation of his sentence or the time credits he should receive, which are cognizable claims 1 under § 2241, to be incorrect. (Id. at 3.) Rather, the magistrate judge found that petitioner is 2 challenging the sentence itself, insofar as he is contesting the validity of it running consecutively, 3 which is a claim cognizable under 28 U.S.C. § 2255, not § 2241. (Id.) Petitioner did not argue 4 that his petition qualifies to be brought under the “escape hatch” of § 2241 (also referred to as the 5 “savings clause”). (Id.; see also Doc. No. 1.) Likewise, the magistrate judge found that the 6 petition does not qualify for the escape hatch because petitioner does not argue that he is actually 7 innocent and that he has not had an unobstructed procedural shot to bring his claim. (Doc. No. 6 8 at 3.) For these reasons, the magistrate judge concluded that petitioner’s § 2241 claim is, in fact, 9 cognizable under § 2255 as a direct challenge to the validity of his sentence. (Id.) Because that 10 claim is cognizable under § 2255, and petitioner was sentenced by the United States District 11 Court for the Southern District of Florida, the magistrate judge concluded this court lacks 12 jurisdiction over the pending petition and recommended its dismissal. (Id. at 3–4.) 13 The findings and recommendations were served petitioner and contained notice that any 14 objections were to be filed within thirty (30) days of the date of service of the findings and 15 recommendations. On May 24, 2021, petitioner filed timely objections. (Doc. No. 7.) In his 16 objections, petitioner appears to concede that this district court does not have jurisdiction over his 17 claims, however, he references exhaustion of administrative procedures, which is not the basis for 18 the magistrate judge’s recommendation. (Id.) 19 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 20 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 21 objections, the court holds the findings and recommendation to be supported by the record and 22 proper analysis. Petitioner cites 18 U.S.C. § 3585(b)(2) to suggest he is not receiving proper 23 credit for the time he served prior to his sentencing. (Doc. No. 1 at 6.) A claim on that ground 24 may be cognizable under § 2241. See, e.g., Pinnow v. Graber, 452 F. App’x 740 (9th Cir. 25 2011) (affirming the district court’s dismissal of a § 2241 petition on another ground where the 26 petition raised sole claim under 18 U.S.C. § 3585(b)).1 However, petitioner’s claim does not rely 27 1 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 28 36-3(b). 1 on § 3585(b)(2) and that statute may have been cited due to misunderstanding on the part of 2 petitioner, because the argument he develops is based on the U.S. Sentencing Guidelines. (Doc. 3 No. 1 at 2, 6, 10–11.) Petitioner argues that the sentencing judge should have sentenced him to 4 concurrent time in prison, rather than to a consecutive sentence, because a concurrent sentence 5 “would have served to achieve a reasonable sentence,” citing § 5G1.3(c) of the guidelines. (Id. at 6 10.) Petitioner also argues that the sentence imposed in his case is disparate when compared to 7 that of a similarly situated co-defendant who received a concurrent time sentence. (Id.) Such 8 claims, if reviewable, must be presented to the sentencing court in the form of a § 2255 motion. 9 Alaimalo v. United States, 645 F.3d 1042, 1046 (9th Cir. 2011) (“As a general rule, 10 [section] 2255 provides the exclusive procedural mechanism by which a federal prisoner may test 11 the legality of his detention.”). 12 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 13 a certificate of appealability (COA) should issue. See Harrison v. Ollison, 519 F.3d 952, 958 (9th 14 Cir. 2008) (“Where a petition purportedly brought under § 2241 is merely a ‘disguised’ § 2255 15 motion, the petitioner cannot appeal from the denial of that petition without a COA.”). A 16 petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s 17 denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. 18 Cockrell, 537 U.S. 322, 335–36 (2003); 28 U.S.C. § 2253. To obtain a certificate of appealability 19 under 28 U.S.C. § 2253(c), a petitioner “must make a substantial showing of the denial of a 20 constitutional right, . . . includ[ing] showing that reasonable jurists could debate whether (or, for 21 that matter, agree that) the petition should have been resolved in a different manner or that the 22 issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. 23 McDaniel, 529 U.S. 473, 483–84 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 24 (1983)). 25 In the present case, the court finds that reasonable jurists would not find the court’s 26 determination that the petition should be dismissed debatable or wrong, or that petitioner should 27 be allowed to proceed further. Therefore, the court declines to issue a certificate of appealability. 28 ///// 1 Accordingly, 2 1. The findings and recommendations issued on May 13, 2021 (Doc. No. 6) are adopted; 3 2. The petition for writ of habeas corpus is dismissed; 4 3. The Clerk of Court is directed to close the case; and 5 4. The court declines to issue a certificate of appealability. 6 | IT IS SO ORDERED. a 7 Li. wh F Dated: _ September 27, 2021 Sea 1" S098 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28