(HC) Jones v. Warden ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 COREY THOMAS JONES, No. 2:22-cv-02010-DAD-AC (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 WARDEN, HABEAS PETITION DUE TO LACK OF JURISDICTION 15 Respondent. (Doc. No. 4) 16 17 Petitioner Corey Thomas Jones is a federal prisoner proceeding pro se with a petition for 18 writ of habeas corpus pursuant to 28 U.S.C. § 2241. The 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 May 2, 2023, the assigned magistrate judge issued findings and recommendations 21 recommending that this action be dismissed. (Doc. No. 4.) Therein, the magistrate judge 22 concluded that this court lacks jurisdiction over the pending § 2241 petition because petitioner’s 23 challenge to his sentence based upon a finding that he was a career offender is one that did not 24 qualify under the escape hatch of 18 U.S.C. § 2255 under the circumstances of his case. (Id. at 1– 25 4.) Rather, the magistrate judge found, petitioner’s exclusive avenue for challenging his sentence 26 was by way of motion pursuant to § 2255 brought in the Eastern District of Virginia where he 27 was sentenced. (Id.) 28 ///// 1 The pending findings and recommendations were served upon the parties and contained 2 notice that any objections thereto were to be filed within twenty-one (21) days after service. (Id. 3 at 4.) 4 On May 25, 2023, the court received petitioner’s objections to the pending findings and 5 recommendations. (Doc. No. 7.) Thereafter, on June 12, 2023, the court received petitioner’s 6 supplemental objections. (Doc. No. 8.) The undersigned has considered petitioner’s objections 7 as raised in both of those filings. Respondent filed no response to petitioner’s objections. 8 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 9 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 10 pending findings and recommendations are supported by the record and proper analysis. 11 In his objections, petitioner essentially argues that he is entitled to relief here because in a 12 case factually similar to his, where the petitioner sought relief pursuant to a § 2255 motion 13 brought in the sentencing court, relief in the form of remand for resentencing was granted. (Doc. 14 Nos. 7 at 2–3; 8 at 2–3) (citing United States v. Canady, 63 F.4th 259 (4th Cir. 2023)). Here, 15 however, petitioner seeks relief from this court pursuant to § 2241. The argument presented in 16 petitioner’s objections therefore provides no basis to call into question the magistrate judge’s 17 analysis. Rather, the pending § 2241 petition is subject to dismissal under binding Ninth Circuit 18 precedent. See Shepherd v. Unknown Party, Warden, FCI Tucson, 5 F.4th 1075, 1077–78 (9th 19 Cir. 2021); see also Mendoza v. Salazar, 856 Fed. App’x 67 (9th Cir. Aug. 11, 2021).1 20 Having concluded that the pending petition must be dismissed, the court turns to the issue 21 of whether a certificate of appealability should issue or is required. A petitioner seeking writ of 22 habeas corpus has no absolute right to appeal; he may appeal only in limited circumstances. See 23 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). A certificate of 24 appealability is required for a successive § 2255 motion that is disguised as a § 2241 petition. See 25 Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008); Porter v. Adams, 244 F.3d 1006, 1007 26 (9th Cir. 2001). Such is the case here. If a court denies a petitioner’s petition, the court may only 27 1 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 28 36–3(b). 1 | issue a certificate of appealability when a petitioner makes a substantial showing of the denial of 2 | aconstitutional right. 28 U.S.C. § 2253(c)(2). Where, as here, the court denies relief on 3 | procedural grounds without reaching the underlying constitutional claims, the court should issue a 4 | certificate of appealability “if jurists of reason would find it debatable whether the petition states 5 | a valid claim of the denial of a constitutional right and that jurists of reason would find it 6 | debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 7 | U.S. 473, 484 (2000). In the present case, the court finds that reasonable jurists would not find 8 | the court’s determination that the pending petition must be dismissed to be debatable or wrong. 9 | Thus, the court declines to issue a certificate of appealability. 10 Accordingly, 11 1. The findings and recommendations issued on May 2, 2023 (Doc. No. 4) are 12 adopted in full; 13 2. The petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2241 (Doc. 14 No. 1) is dismissed; 15 3. The court declines to issue a certificate of appealability; and 16 4. The Clerk of the Court is directed to close this case. 17 IT IS SO ORDERED. | Dated: _ June 29, 2023 Dae A. 2, sel 19 UNITED STATES DISTRICY JUDGE 20 21 22 23 24 25 26 27 28