(HC) Qun v. Arviza ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LIN LONG QUN, No. 1:21-cv-1677 JLT SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 (Doc. 11) 14 v. ORDER GRANTING RESPONDENT’S MOTION TO DISMISS, DENYING 15 PETITION FOR WRIT OF HABEAS CORPUS, AND DIRECTING CLERK OF 16 MARIA ARVIZA, Warden, COURT TO ENTER JUDGMENT AND CLOSE CASE 17 Respondent. [NO CERTIFICATE OF APPEALABILITY IS 18 REQUIRED] 19 20 In this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, Petitioner 21 challenges the Bureau of Prisons’ computation of his federal sentence. Petitioner asserts the BOP 22 failed to credit his federal sentence for the seven months (August 2000 to March 2001) he spent 23 in a federal detention center before his conviction. 24 Respondent moved to dismiss the petition, asserting Petitioner failed to exhaust his 25 administrative remedies and the claims were meritless because the BOP correctly computed the 26 federal sentence. (Doc. 9.) The magistrate judge found there was no record Petitioner exhausted 27 his administrative remedies and recommended the petition “be dismissed for lack of exhaustion.” 28 (Id. at 4-5.) The magistrate judge found Petitioner received credit for the time served on his state 1 sentence, which precluded him from receiving the same credits on his federal sentence under 18 2 U.S.C. § 3585. (Id. at 5-6.) The magistrate judge determined it was “evident that Petitioner is not 3 entitled to any credit for time spent in federal custody from August 16, 2000, to April 4, 2001” 4 under 18 U.S.C. § 3585. (Id. at 5-6.) Therefore, the magistrate judge found Petitioner’s “claims 5 are without merit” and recommended the petition be denied with prejudice on March 28, 2022. 6 (Id. at 6.) 7 The Findings and Recommendations notified all parties that any objections thereto were 8 to be filed within thirty days after service. (Doc. 11 at 6-7.) The Court also advised them that 9 “failure to file objections within the specified time may waive the right to appeal the Order of the 10 District Court.” (Id. at 6, citing Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).) No objections 11 have been filed, and the deadline to do so has expired. 12 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court conducted a de 13 novo review of the case. Having carefully reviewed the entire file, the Court concludes that the 14 Findings and Recommendations are supported by the record and proper analysis. 15 In addition, the Court notes that the plain language of 28 U.S.C. § 2253(c)(1) does not 16 require a certificate of appealability, because this is an order denying a petition for writ of habeas 17 corpus pursuant to 28 U.S.C. § 2241, not a final order in habeas proceedings in which the 18 detention complained of arises out of process issued by a state court. Forde v. U.S. Parole 19 Commission, 114 F.3d 878 (9th Cir. 1997); see also Ojo v. INS, 106 F.3d 680, 681-682 (5th Cir. 20 1997); Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). Accordingly, the Court ORDERS: 21 1. The Findings and Recommendations issued on March 28, 2022 (Doc. 11), are 22 adopted in full. 23 2. Respondent’s motion to dismiss (Doc. 9) is granted. 24 3. The petition for writ of habeas corpus is denied with prejudice. 25 4. The Clerk of Court is directed to enter judgment and close the case. 26 5. Should an appeal be filed, no certificate of appealability will be required. 27 /// 28 /// 1 This order terminates the action in its entirety. 2 3 IT IS SO ORDERED. 4] Dated: _ May 22, 2022 Charis [Tourn TED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28