Acevedo v. McClintock

Filing 18

ORDER Magistrate Judge Ferraro's Report and Recommendation (Doc. 17 ) is accepted and adopted. Petitioner's § 2241 Petition for Writ of Habeas Corpus (Doc. 1 ) is DENIED. This case is dismissed with prejudice. Signed by Judge Jennifer G Zipps on 8/11/2017. (See attached Order for details) (KEP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Cesar Trevizo Acevedo,

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Petitioner,

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ORDER

v.

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No. CV-16-00798-TUC-JGZ

Susan G McClintock,

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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 D. Thomas Ferraro that recommends dismissing Petitioner’s §

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2241 Petition for Writ of Habeas Corpus as moot. (Doc. 17.)

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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 Ferraro’s

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recommendation is not clearly erroneous. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72;

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Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); see also Conley v.

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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 § 2241 petition, a certificate

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of appealability is not required.

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Accordingly, IT IS HEREBY ORDERED as follows:
1. Magistrate Judge Ferraro’s Report and Recommendation (Doc. 17) is accepted and
adopted;

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2. Petitioner’s § 2241 Petition for Writ of Habeas Corpus (Doc. 1) is DENIED;

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3. This case is dismissed with prejudice;

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

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Dated this 11th day of August, 2017.

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