Herron v. Shartle

Filing 36

ORDER ADOPTING REPORT AND RECOMMENDATION. Magistrate Judge Markovich's 35 Report and Recommendation is accepted and adopted. Petitioner's 6 Amended § 2241 Petition for Writ of Habeas Corpus is DENIED. Petitioner's 31 Motion for Temporary Injunction and 32 Request for Status Conference are DENIED AS MOOT. J.T. Shartle, Warden, shall be substituted as Respondent, in place of Louis W. Winn, Jr. This case is dismissed with prejudice. The Clerk of the Court shall enter judgment accordingly. Signed by Judge Jennifer G Zipps on 9/25/2015. (KEP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Brian Keith Herron,

No. CV-13-00358-TUC-JGZ
Petitioner,

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v.

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ORDER

Louis W. Winn,

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Respondent.

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Pending before the Court is a Report and Recommendation issued by United

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States Magistrate Judge Eric J. Markovich that recommends denying Petitioner’s

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Amended § 2241 Petition for Writ of Habeas Corpuson its merits. (Doc. 35.)

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A review of the record reflects that the parties have not filed any objections to the

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Report and Recommendation and the time to file objections has expired. As such, the

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Court will not consider any objections or new evidence.

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The Court has reviewed the record and concludes that Magistrate Judge

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Markovich’s recommendation is not clearly erroneous. See 28 U.S.C. § 636(b)(1); Fed.

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R. Civ. P. 72; Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); see

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also Conley v. Crabtree, 14 F. Supp. 2d 1203, 1204 (D. Or. 1998).

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“The plain language of [28 U.S.C.] § 2253(c)(1) does not require a petitioner to

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obtain a [certificate of appealability] in order to appeal the denial of a § 2241 petition.”

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Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008). “Nor is there any other statutory

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basis for imposing a [certificate of appealability] requirement on legitimate § 2241

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petitions. Although state prisoners proceeding under § 2241 must obtain a [certificate of

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appealability], see § 2253(c)(1)(A), there is no parallel requirement for federal prisoners.”

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Id. Thus, because Petitioner is a federal prisoner bringing a legitimate § 2241 petition, a

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certificate of appealability is not required.

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Accordingly, IT IS HEREBY ORDERED as follows:
1. Magistrate Judge Markovich’s Report and Recommendation (Doc. 35) is accepted
and adopted;
2. Petitioner’s Amended § 2241 Petition for Writ of Habeas Corpus (Doc. 6) is
DENIED;
3. Petitioner’s Motion for Temporary Injunction (Doc. 31) and Request for Status
Conference (Doc. 32) are DENIED AS MOOT;

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4. J.T. Shartle, Warden, shall be substituted as Respondent, in place of Louis W.

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Winn, Jr., pursuant to Rule 25, Fed. R. Civ. P., and Rule 43(c)(2) of the Fed. R.

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App. P.;

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5. This case is dismissed with prejudice;

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6. The Clerk of the Court shall enter judgment accordingly.

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Dated this 25th day of September, 2015.

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