(HC) Ford v. Trate ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 QUINDELL FORD, Case No. 1:22-cv-01327-JLT-CDB 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS DISMISSING THE 13 v. PETITION WITH PREJUDICE AND DIRECTING THE CLERK OF COURT TO 14 B.M. TRATE, CLOSE THE CASE 15 Respondent. (Doc. 14) 16 17 The assigned magistrate judge issued findings and recommendations to dismiss 18 Petitioner’s 28 U.S.C. § 2241 petition with prejudice. The Court served the findings and 19 recommendations on Petitioner and extended to him 14 days to file objections thereto. The 20 findings and recommendations advised Petitioner that “failure to file objections within the 21 specified time may result in the waiver of rights on appeal.” (Doc. 14); Turner v. Duncan, 158 22 F.3d 449, 455 (9th Cir. 1998). 23 On April 11, 2023, the Clerk of Court filed Petitioner’s “Objection to Recommendation to 24 Dismiss and Denial of Preliminary Injunction / Motion to Stay Judgment.” (Doc. 15.) Petitioner’s 25 objections are untimely. The Court served the findings and recommendations on Petitioner on 26 March 14, 2023 and extended him an additional 14 days to file objections thereto. Pursuant to 27 Fed. R. Civ. P. Rule 6(d), Petitioner is afforded three additional days because of service of mail, 1 According to his filing, Petitioner delivered his objections and motion to stay to the institutional 2 mailing system on the following April 5, 2023 (the following Wednesday). 3 Aside from being untimely, Petitioner’s objections to the magistrate judge’s findings and 4 recommendations largely rehash arguments Petitioner advanced in opposition to Respondent’s 5 motion to dismiss that pertain to the merits of his habeas claims. Petitioner neither challenges nor 6 addresses the magistrate judge’s finding that Petitioner did not lack an unobstructed procedural 7 shot to raise his habeas claim in his court of conviction (the District Court for the District of 8 Maryland). Indeed, as the magistrate judge found, the Fourth Circuit granted Petitioner 9 permission to file a successive § 2255 petition for motion to vacate, and Petitioner did in fact file 10 a § 2255 petition, which is currently pending in the District of Maryland. That petition raises 11 nearly identical claims as the § 2241 petition brought before this Court. Accordingly, Petitioner 12 cannot establish that he “has not had an unobstructed procedural shot” at presenting his claim 13 (Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006) (internal quotation marks omitted)), and, thus, he fails to qualify for relief pursuant to the escape hatch of § 2255. E.g., Lewis v. Salazar, 14 829 Fed. Appx. 239, 241 (9th Cir. 2020) (affirming district court’s dismissal of habeas petition 15 brought pursuant to escape hatch because petitioner was able to present the same claim in motions 16 for leave to file successive §2255 petitions). It follows that Petitioner cannot demonstrate that “his 17 remedy under § 2255 is inadequate or ineffective to test the legality of his detention.” Id. The 18 magistrate judge properly concluded that Petitioner could not bring his claim as a § 2241 petition. 19 Petitioner further asserts that “nothing in the statute for a writ of habeas corpus allows a 20 district court to consider jurisdiction rather than issuing the writ.” (Doc. 15, p. 3.) But that is 21 incorrect: though Section 2241 empowers district courts to issue writs of habeas corpus, that 22 power is expressly limited to issuance only “within their respective jurisdictions.” 28 U.S.C. § 23 2241(a). For the reasons set forth in the findings and recommendations, the magistrate judge 24 correctly found that this Court lacks jurisdiction over Petitioner’s petition. Likewise, the 25 magistrate judge was correct in concluding that Petitioner’s motion for preliminary injunction 26 cannot survive because he is unable to demonstrate that he is likely succeed on the merits, given 27 that this Court lacks jurisdiction over the petition. Petitioner advances no meritorious reason why 1 | this Court’s disposition of the petition should be stayed. 2 Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this 3 || case. Having carefully reviewed the entire file, the Court concludes the findings and 4 | recommendations are supported by the record and by proper analysis. Based upon the foregoing, 5 | the Court ORDERS: 6 1. The findings and recommendations issued on March 14, 2022, (Doc. 14) are 7 ADOPTED IN FULL. 8 2. Petitioner Quindell Ford’s petition for writ of habeas corpus (Doc. 1) is DISMISSED 9 with prejudice. 10 3. The Clerk of Court is directed to close this case. 11 12 | TIS SO ORDERED. 13 | Dated: _ May 16, 2023 Charis [Tourn 4 TED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28