Randall D Tomlinson v. Linda T McGrew

Filing 18

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Valerie Baker Fairbank. IT IS THEREFORE ORDERED as follows: Petitioner's objections are OVERRULED. The petition for a writ of habeas corpus is DENIED. This action is DISMISSED with prejudice. re Report and Recommendation (Issued) 14 . (jp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RANDALL D. TOMLINSON, 12 Petitioner, 13 v. 14 JOHN F. CARAWAY, Warden, 15 Respondent. __________________________ 16 17 ) ) ) ) ) ) ) ) ) ) Case No. LA CV 14-02094-VBF (KK) ORDER Overruling Petitioner's Objections, Accepting the Findings and Recommendations of the Magistrate Judge, Denying Federal Prisoner's Section 2241 Habeas Corpus Petition, and Dismissing this Action Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for a Writ of 18 Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Document ("Doc" 1), the respondent's 19 Return (Doc 9) and the accompanying declaration and exhibits (Doc 9-1), petitioner's 20 reply (Doc 17), the well-reasoned Report and Recommendation ("R&R") of the 21 Honorable Kenly Kiya Kato, United States Magistrate Judge (Doc 14), petitioner's 22 objections (Doc 16), the records on file, and the applicable law. After engaging in a 23 de novo review of those portions of the R&R to which petitioner lodged specific 24 objection, the Court accepts the findings and recommendation of the Magistrate 25 Judge. IT IS THEREFORE ORDERED as follows: 26 27 Petitioner's objections are OVERRULED. 28 The petition for a writ of habeas corpus is DENIED. This action is DISMISSED with prejudice. 1 As required by Federal Rule of Civil Procedure 58(a), final judgment will be 2 entered by separate document. 3 As a federal prisoner, petitioner is not required to obtain a certificate of 4 appealability in order to appeal to the U.S. Court of Appeals in this case. See 5 Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir.2008) (“The plain language of § 6 2253(c)(1) does not require a petitioner to obtain a COA in order to appeal the denial 7 of a § 2241 petition.”) (citing Ford v. U.S. Parole Comm'n, 114 F.3d 878, 879 (9th 8 Cir. 1997))1; Muth v. Fondren, 676 F.3d 815, 818 (9th Cir.) (citations omitted), cert. 9 denied, – U.S. –, 133 S. Ct. 292 (2012). 10 11 Dated: September 16, 2014 12 _______________________________ 13 VALERIE BAKER FAIRBANK UNITED STATES DISTRICT JUDGE 14 15 16 17 1 The relevant provision states as follows: 18 19 Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from – 20 21 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court [such as a petition pursuant to 28 U.S.C. § 2254]; or (B) the final order in a proceeding under section 2255. 22 23 24 25 28 U.S.C. section 2253(c)(1). Our Circuit interprets section 2253 to require only 26 habeas petitioners in custody pursuant to a state-court judgment to obtain a COA before appealing from a final order denying a § 2241 claim. See Harrison, 519 F.3d 27 at 958 ("Although state prisoners proceeding under § 2241 must obtain a COA, see 28 28 U.S.C. § 2253(c)(1)(A), there is no parallel requirement for federal prisoners."). 2

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