Clark v. Apker

Filing 38

ORDER ADOPTING REPORT AND RECOMMENDATIONS; DENYING 13 Amended Petition for Writ of Habeas Corpus ; DENIED AS MOOT 33 and 34 Motions for Reconsideration. Certificate of Appealability shall not issue. A judgment shall be entered accordingly. Signed by Senior Judge Frank R Zapata on 2/21/13. (SMBE)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Joey Deshaun Clark,
Petitioner,

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vs.

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Craig Apker,

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Respondent.

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No. CV 11-620-TUC-FRZ (HCE)
ORDER

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Before the Court for consideration is Petitioner Joey Deshaun Clark’s Amended

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Petition under 28 U.S.C. §2241 for a Writ of Habeas Corpus by a Person in Federal Custody

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and the Report and Recommendation of Magistrate Judge Hector C. Estrada, recommending

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the District Court, following its independent review of the record, deny and dismiss

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Petitioner’s Amended Petition.

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Pursuant to Rules 72.1 and 72.2 of the Local Rules, Rules of Practice of the United

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States District Court for the District of Arizona, this matter was referred to Magistrate Judge

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Estrada for further proceedings and report and recommendation.

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Petitioner, presently incarcerated at the United States Penitentiary in Tucson, Arizona,

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claims that the Bureau of Prisons (hereinafter “BOP”) has not properly given him credit on

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his sentence for the time he was incarcerated prior to imposition of his federal sentence.

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The Report and Recommendation sets forth the factual and procedural history of

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Petitioner’s state and federal criminal proceedings in the state of Nevada at issue and

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provides a thorough analysis of the claims and legal standards at issue.

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Petitioner filed Objections to the Report and Recommendation (Doc. 35) challenging
the findings and recommendation set forth therein.
Petitioner also filed four separate requests for the Court’s consideration. (Docs. 33,
34, 36 and 37).

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The Court finds, after consideration of the matters presented and an independent

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review of the record herein, including Petitioner’s detailed Objection to the Report and

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Recommendation and separate requests for the Court’s consideration, that there is no basis

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upon which to grant the relief requested.

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Accordingly, the Court shall adopt the Report and Recommendation and the Amended

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Petition shall be denied and this action shall be dismissed in accordance with the

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recommendations set forth therein.

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In the event Petitioner appeals this decision, the Court declines to issue a certificate

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of appealability (“COA”). A court “must resolve doubts about the propriety of a COA in the

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petitioner’s favor.” Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002)(citing

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Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (en banc). The Court “may issue

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a COA for any issue with respect to which petitioner makes a “substantial showing of the

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denial of a constitutional right.” Id.; 28 U.S.C. § 2253(c)(2). This showing can be established

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by demonstrating that the issues are “adequate to deserve encouragement to proceed further.”

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Slack v. McDaniel, 529 U.S. 473, 484, S.Ct. (2000) (citing Barefoot v. Estelle, 463 U.S. 880,

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893 n.4, S.Ct. (1983)).

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The Court finds that the issues presented do not advance the requisite showing for a
COA to issue. Accordingly,

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IT IS ORDERED that the Report and Recommendation (Doc. 32) is hereby

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ACCEPTED AND ADOPTED as the findings of fact and conclusions of law by this Court;

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IT IS FURTHER ORDERED that the Amended Petition under 28 U.S.C. §2241 for

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a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 13) is DENIED and this

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action is hereby DISMISSED;

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IT IS FURTHER ORDERED that a Certificate of Appealability shall not issue;
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IT IS FURTHER ORDERED that all other pending matters (Docs. 33 and 34) are
denied as moot;
IT IS FURTHER ORDERED that judgment be entered accordingly.

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DATED this 21st day of February, 2013.

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