(HC) Gutierrez v. Arviza ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 OCTAVIO MOYA GUTIERREZ, No. 1:22-cv-01089-ADA-SAB (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATION, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 M. ARVIZA, TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 15 Respondent. (ECF No. 6) 16 17 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus 18 purportedly brought pursuant to 28 U.S.C. § 2241. This matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On September 23, 2022,1 the Magistrate Judge issued findings and recommendations 21 recommending that the petition for writ of habeas corpus be dismissed for lack of jurisdiction as 22 petitioner failed to satisfy the criteria to bring a § 2241 petition pursuant to the savings clause of 23 28 U.S.C. § 2255(e). (ECF No. 6.) The findings and recommendations were served on Petitioner 24 and contained notice that any objections were to be filed within thirty days of the date of service 25 of the findings and recommendations. The Court subsequently granted an extension of time to 26 file objections. (ECF No. 8.) To date, Petitioner has filed no objections, and the time for doing 27 so has passed. 28 1 The findings and recommendations were signed on September 22, 2022, but not docketed until September 23, 2022. 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 holds the 3 findings and recommendations to be supported by the record and proper analysis. 4 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 5 a certificate of appealability (COA) should issue. See Harrison v. Ollison, 519 F.3d 952, 958 (9th 6 Cir. 2008) (“Where a petition purportedly brought under § 2241 is merely a ‘disguised’ § 2255 7 motion, the petitioner cannot appeal from the denial of that petition without a COA.”). A 8 petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s 9 denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. 10 Cockrell, 537 U.S. 322, 335–36 (2003); 28 U.S.C. § 2253. To obtain a certificate of appealability 11 under 28 U.S.C. § 2253(c), a petitioner “must make a substantial showing of the denial of a 12 constitutional right, . . . includ[ing] showing that reasonable jurists could debate whether (or, for 13 that matter, agree that) the petition should have been resolved in a different manner or that the 14 issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. 15 McDaniel, 529 U.S. 473, 483–84 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 16 (1983)). 17 In the present case, the Court finds that reasonable jurists would not find the Court’s 18 determination that the petition should be dismissed debatable or wrong, or that Petitioner should 19 be allowed to proceed further. Therefore, the Court declines to issue a certificate of appealability. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 Accordingly, 2 1. The findings and recommendations issued on September 23, 2022, (ECF No. 6), 3 are adopted in full; 4 2. The petition for writ of habeas corpus is dismissed; 5 3. The Clerk of Court is directed to close the case; and 6 4. The Court declines to issue a certificate of appealability. 4 8 g | SO ORDERED. 10 Dated: _ February 14, 2023 UNITED fTATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28