(HC) Merriweather v. Taylor

Filing 10

ORDER ADOPTING 7 Findings and Recommendations, DISMISSING Petition for Writ of Habeas Corpus, DIRECTING Clerk of Court to close case, and DECLINING to issue Certificate of Appealability signed by District Judge Jennifer L. Thurston on 3/26/2024. CASE CLOSED. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM MERRIWEATHER, 12 13 14 15 Petitioner, v. WARDEN TAYLOR, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY Respondent. (Doc. 7) 16 17 No. 1:23-cv-1732 JLT EPG (HC) William Merriweather is a federal prisoner proceeding pro se with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2241. The magistrate judge reviewed the petition and 19 found the “Court does not have jurisdiction to entertain the instant petition pursuant to the savings 20 clause of 28 U.S.C. § 2255(e).” (Doc. 7 at 1.) Therefore, the magistrate judge recommended the 21 petition be dismissed. (Id. at 4.) 22 The Court served the Findings and Recommendations on Petitioner and notified him that 23 any objections were due within 30 days. (Doc. 7 at 3.) The Court advised him that the “failure to 24 file objections within the specified time may waive the right to appeal the District Court’s order.” 25 (Id., citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).) Petitioner did not file 26 objections, and the time to do so has passed. 27 28 According to 28 U.S.C. § 636(b)(1)(C), the Court performed a de novo review of the case. Having carefully reviewed the matter, the Court concludes the Findings and Recommendations 1 1 2 are supported by the record and proper analysis. Having found that Petitioner is not entitled to habeas relief, the Court now turns to 3 whether a certificate of appealability should issue. See Harrison v. Ollison, 519 F.3d 952, 958 4 (9th Cir. 2008) (“Where a petition purportedly brought under § 2241 is merely a ‘disguised’ 5 § 2255 motion, the petitioner cannot appeal from the denial of that petition without a COA.”). A 6 petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s 7 denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. 8 Cockrell, 537 U.S. 322, 335–36 (2003); 28 U.S.C. § 2253. To obtain a certificate of appealability 9 under 28 U.S.C. § 2253(c), a petitioner “must make a substantial showing of the denial of a 10 constitutional right, . . . includ[ing] showing that reasonable jurists could debate whether (or, for 11 that matter, agree that) the petition should have been resolved in a different manner or that the 12 issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. 13 McDaniel, 529 U.S. 473, 483–84 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 14 (1983)). In the present case, reasonable jurists would not find the Court’s determination that the 15 petition should be dismissed debatable or wrong, or that Petitioner should be allowed to proceed 16 further. Therefore, the Court declines to issue a certificate of appealability. Accordingly, the 17 Court ORDERS: 18 1. 19 The findings and recommendations issued on January 12, 2024 (Doc. 7) are ADOPTED in full. 20 2. The petition for writ of habeas corpus is DISMISSED. 21 3. The Clerk of Court is directed to CLOSE THE CASE. 22 4. The Court DECLINES to issue a certificate of appealability. 23 24 25 IT IS SO ORDERED. Dated: March 26, 2024 26 27 28 2

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