(HC)Gutierrez-Perez v. Brewer ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAMON GUTIERREZ-PEREZ, No. 2:22-cv-00643-DAD-AC (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 DAVID BREWER, HABEAS PETITION 15 Respondent. (Doc. Nos. 1, 2, 8) 16 17 Petitioner Ramon Gutierrez-Perez is a federal prisoner proceeding pro se with a petition 18 for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On October 7, 2022, the assigned magistrate judge issued findings and recommendations 21 recommending that petitioner’s federal habeas petition be dismissed for lack of jurisdiction 22 because “petitioner does not challenge the legality or duration of his confinement, but instead 23 challenges the conditions of his confinement.” (Doc. No. 8 at 2.) The pending findings and 24 recommendations were served upon petitioner and contained notice that any objections thereto 25 were to be filed within fourteen (14) days after service. (Id.) To date, petitioner has not filed any 26 objections and the time in which to do so has passed.1 27 1 The service copy of the findings and recommendations was mailed to petitioner at his address 28 of record and was returned to the court as “Undeliverable, Return to Sender, No Longer Here.” 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 concludes that the 3 || pending findings and recommendations are supported by the record and proper analysis. 4 Having concluded that the pending petition must be dismissed, the court also declines to 5 || issue a certificate of appealability. A petitioner seeking writ of habeas corpus has no absolute 6 || right to appeal; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; Miller-El v. 7 || Cockrell, 537 U.S. 322, 335-36 (2003). If a court denies a petitioner’s petition, the court may 8 || only issue a certificate of appealability when a petitioner makes a substantial showing of the 9 || denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Where, as here, the court denies habeas 10 || relief on procedural grounds without reaching the underlying constitutional claims, the court 11 | should issue a certificate of appealability “if jurists of reason would find it debatable whether the 12 || petition states a valid claim of the denial of a constitutional right and that jurists of reason would 13 | find it debatable whether the district court was correct in its procedural ruling.” Slack v. 14 || McDaniel, 529 U.S. 473, 484 (2000). In the present case, the court finds that reasonable jurists 15 | would not find the court’s determination that the pending petition must be dismissed to be 16 || debatable or wrong. Thus, the court declines to issue a certificate of appealability. 17 Accordingly, 18 1. The findings and recommendations issued on October 7, 2022 (Doc. No. 8) are 19 adopted in full; 20 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 21 3. Petitioner’s motion to proceed in forma pauperis (Doc. No. 2) is denied as having 22 been rendered moot by this order; 23 4. The court declines to issue a certificate of appealability; and 24 5. The Clerk of the Court is directed to close this case. 25 IT IS SO ORDERED. *° | Dated: _ November 17, 2022 Dab A. 2, ayel 27 UNITED STATES DISTRICT JUDGE 28