(HC) Harvey v. Thompson ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD HARVEY, No. 2:21-cv-01865-DAD-DMC (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING 14 PAUL THOMPSON, et al., RESPONDENTS’ MOTION TO DISMISS THIS ACTION 15 Respondents. (Doc. Nos. 6, 9) 16 17 Petitioner Richard Harvey is a federal prisoner proceeding pro se with a petition for a writ 18 of habeas corpus pursuant to 28 U.S.C. § 2241, seeking his release from custody under the First 19 Step Act. (See Doc. No. 1.) The 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 August 1, 2022, the assigned magistrate judge issued findings and recommendations 22 recommending that respondent’s motion to dismiss (Doc. No. 6) be granted due to petitioner’s 23 failure to first exhaust administrative remedies in seeking the award of additional earned time 24 credits and his failure to state a claim upon which relief can be granted under 28 U.S.C. § 2241. 25 (Doc. No. 9.) Those findings and recommendations were served on all parties and contained 26 notice that any objections thereto were to be filed within 27 ///// 28 ///// 1 fourteen (14) days from the date of service.1 (Id. at 5.) To date, no objections have been filed 2 and the time in which to do so has now passed.2 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 4 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 5 court finds the findings and recommendations to be supported by the record and proper analysis. 6 Accordingly, respondents’ motion to dismiss the pending petition will be granted. 7 Additionally, the court declines to issue a certificate of appealability. A petitioner seeking 8 writ of habeas corpus has no absolute right to appeal; he may appeal only in limited 9 circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). Rule 10 11 of the Rules Governing Section 2254 Cases requires that a district court issue or deny a 11 certificate of appealability when entering a final order adverse to a petitioner. See also Ninth 12 Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). The court will 13 issue a certificate of appealability “if jurists of reason would find it debatable whether the petition 14 states a valid claim of the denial of a constitutional right and that jurists of reason would find it 15 debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 16 U.S. 473, 484 (2000). Here, reasonable jurists would not find the court’s decision to dismiss the 17 petition to be debatable or conclude that the petition should proceed further. Thus, the court 18 declines to issue a certificate of appealability. 19 Accordingly, 20 1. The findings and recommendations issued on August 1, 2022 (Doc. No. 9) are 21 adopted in full; 22 ///// 23 24 1 The service copies of court’s order dated April 19, 2022 and the pending findings and recommendations, which were mailed to petitioner at his address of record, were returned to the 25 court as “Undeliverable, RTS, Refused, Unable to Forward, No longer here.” Petitioner was thus required to file a notice of his change of address with the court no later than August 22, 2022. To 26 date, petitioner has not filed a notice of his change of address or otherwise communicate with the 27 court. 28 2 This case was reassigned to the undersigned district judge on August 25, 2022. (Doc. No. 10.) 1 2. Respondents’ motion to dismiss the pending petition (Doc. No. 6) is granted; 2 3. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 3 4. The court declines to issue a certificate of appealability; and 4 5. The Clerk of the Court is directed to close this case. 5 IT IS SO ORDERED. ° | Dated: _November 10, 2022 Dab A. 2, aol 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28