Opinion

(HC) Brown v. Warden of U.S.P. Atwater

Court
District Court, E.D. California
Filed
Jul 26, 2021
Cited by
0 cases
Authority
More cited than 17.7%

The opinion

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 JABORIE BROWN, Case No. 1:20-cv-00233-AWI-SAB-HC

12 Petitioner, ORDER ADOPTING FINDINGS AND

RECOMMENDATION, GRANTING

13 v. RESPONDENT’S MOTION TO DISMISS,

DISMISSING PETITION AND

14 WARDEN OF U.S.P. ATWATER, SUPPLEMENTAL PETITIONS FOR WRIT

OF HABEAS CORPUS, DIRECTING

15 Respondent. CLERK OF COURT TO CLOSE CASE,

AND DECLINING TO ISSUE A

16 CERTIFICATE OF APPEALABILITY

17 (ECF Nos. 1, 14, 22, 23, 25)

18 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus

19 pursuant to 28 U.S.C. § 2241. This 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 June 1, 2021, the Magistrate Judge issued Findings and Recommendation

22 recommending that Respondent’s motion to dismiss be granted and the petition and supplemental

23 petitions for writ of habeas corpus be dismissed for lack of jurisdiction as Petitioner failed to

24 satisfy the criteria to bring a § 2241 petition pursuant to the escape hatch of 28 U.S.C. § 2255(e).

25 (ECF No. 25). The Findings and Recommendation was served the parties and contained notice

26 that any objections were to be filed within thirty (30) days of the date of service of the Findings

27 and Recommendation. To date, no objections have been filed, and the time for doing so has

passed.

1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted

2 a de novo review of the case. Having carefully reviewed the entire file, the Court concludes that

3 the Findings and Recommendation is supported by the record and proper analysis.

4 “Where a petition purportedly brought under § 2241 is merely a ‘disguised’ § 2255

5 motion, the petitioner cannot appeal from the denial of that petition without a [certificate of

6 appealability].” Harrison, 519 F.3d at 958. The controlling statute in determining whether to

7 issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:

8 (a) In a habeas corpus proceeding or a proceeding under section

2255 before a district judge, the final order shall be subject to

9 review, on appeal, by the court of appeals for the circuit in which

the proceeding is held.

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(b) There shall be no right of appeal from a final order in a

11 proceeding to test the validity of a warrant to remove to another

district or place for commitment or trial a person charged with a

12 criminal offense against the United States, or to test the validity of

such person’s detention pending removal proceedings.

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(c) (1) Unless a circuit justice or judge issues a certificate of

14 appealability, an appeal may not be taken to the court of

appeals from–

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(A) the final order in a habeas corpus proceeding in which

16 the detention complained of arises out of process issued by

a State court; or

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(B) the final order in a proceeding under section 2255.

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(2) A certificate of appealability may issue under paragraph (1)

19 only if the applicant has made a substantial showing of the

denial of a constitutional right.

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(3) The certificate of appealability under paragraph (1) shall

21 indicate which specific issue or issues satisfy the showing

required by paragraph (2).

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23 A court should issue a certificate of appealability if “reasonable jurists could debate

24 whether (or, for that matter, agree that) the petition should have been resolved in a different

25 manner or that the issues presented were ‘adequate to deserve encouragement to proceed

26 further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S.

27 880, 893 & n.4 (1983)). In the present case, the Court finds that reasonable jurists would not find

1 | that Petitioner should be allowed to proceed further. Therefore, the Court declines to issue a

2 | certificate of appealability.

3 Accordingly, IT IS HEREBY ORDERED that:

4 1. The Findings and Recommendation issued on June 1, 2021 (ECF No. 25) is

5 ADOPTED IN FULL;

6 2. Respondent’s motion to dismiss (ECF No. 23) is GRANTED;

7 3. The petition and supplemental petitions for writ of habeas corpus (ECF Nos. 1, 14,

8 22) are DISMISSED;

9 4. The Clerk of Court is directed to CLOSE the case; and

10 5. The Court DECLINES to issue a certificate of appealability.

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Db IT IS SO ORDERED.

13 | Dated: _July 26, 2021 —. 7 LZ : Rh ed

SENIOR DISTRICT JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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