Eisenhour v. Gutierrez

Filing 11

ORDER ADOPTING 9 REPORT AND RECOMMENDATION. IT IS ORDERED, Plaintiff's 1 Petition Under 28 USC § 2241 for a Writ of Habeas Corpus is DENIED and this matter DISMISSED. The Clerk of Court shall docket accordingly. Signed by Judge John C Hinderaker on 2/6/24. (BAC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jimmy Lee Anthony Eisenhour,
Petitioner,

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v.

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M. Gutierrez,

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No. CV-23-00252-TUC-JCH
ORDER

Defendant.

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On January 19, 2024, Magistrate Judge Maria S. Aguilera issued a Report and

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Recommendation ("R&R"), recommending that the Court deny Petitioner Jimmy

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Eisenhour's habeas petition under 28 U.S.C. § 2241. (Doc. 9.) The R&R notified the parties

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they had fourteen (14) days from the date of the R&R to file any objections. (Id. at 3.) No

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objections have been filed.

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It appears from the docket that the Clerk's Office mailed a copy of the R&R to

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Petitioner, but it was returned as undeliverable. (Doc. 10.) The Court's screening order

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warned Petitioner it was his responsibility to keep his address current, and failure to do so

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may result in dismissal. (Doc. 4 at 2.) "A party, not the district court, bears the burden of

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keeping the court apprised of any changes to his mailing address." Carey v. King, 856 F.2d

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1439, 1441 (9th Cir. 1988); see also LRCiv 83.3 (stating an incarcerated petitioner must

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serve notice of change of address within seven days of the date of the change). The Court,

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therefore, will consider the R&R irrespective of the undeliverable mail.

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If no objections are filed, the district judge is not required to review the magistrate

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judge's R&R under any specified standard of review. Thomas v. Arn, 474 U.S. 140, 150

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(1985). However, the district judge may conduct further review, "sua sponte or at the

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request of a party, under a de novo or any other standard." Id. at 154.

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The Court has reviewed and considered the Petition (Doc. 1), Warden Gutierrez's

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Response and exhibits (Doc. 8), and the Magistrate's R&R (Doc. 9). The Court finds the

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R&R is well–reasoned and adopts Magistrate Judge Aguilera's findings and conclusions.

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The Court need not issue a certificate of appealability in this matter. See Harrison

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v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008) (finding a § 2241 habeas does not require a

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certificate of appealability "unless the section 2241 petition is a section 2255 petition in

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disguise").

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Accordingly, IT IS ORDERED:

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1. The R&R is ADOPTED. (Doc. 9.)

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2. Plaintiff's Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus is DENIED

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and this matter DISMISSED. (Doc. 1.) The Clerk of Court shall docket accordingly.

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Dated this 6th day of February, 2024.

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