(HC)Gutierrez-Perez v. Brewer

Filing 9

ORDER signed by District Judge Dale A. Drozd on 11/17/2022 ADOPTING the 8 Findings and Recommendations in full. The 1 Petition for Habeas Corpus is DISMISSED and the 2 Motion to Proceed IFP is DENIED as having been rendered moot. The court DECLINES to issue a Certificate of Appealability. CASE CLOSED. (Spichka, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAMON GUTIERREZ-PEREZ,

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Petitioner,

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No. 2:22-cv-00643-DAD-AC (HC)

v.
DAVID BREWER,

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Respondent.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
HABEAS PETITION
(Doc. Nos. 1, 2, 8)

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Petitioner Ramon Gutierrez-Perez is a federal prisoner proceeding pro se with a petition

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for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter was referred to a United

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States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On October 7, 2022, the assigned magistrate judge issued findings and recommendations

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recommending that petitioner’s federal habeas petition be dismissed for lack of jurisdiction

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because “petitioner does not challenge the legality or duration of his confinement, but instead

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challenges the conditions of his confinement.” (Doc. No. 8 at 2.) The pending findings and

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recommendations were served upon petitioner and contained notice that any objections thereto

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were to be filed within fourteen (14) days after service. (Id.) To date, petitioner has not filed any

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objections and the time in which to do so has passed.1

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The service copy of the findings and recommendations was mailed to petitioner at his address
of record and was returned to the court as “Undeliverable, Return to Sender, No Longer Here.”
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a

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de novo review of the case. Having carefully reviewed the entire file, the court concludes that the

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pending findings and recommendations are supported by the record and proper analysis.

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Having concluded that the pending petition must be dismissed, the court also declines to

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issue a certificate of appealability. A petitioner seeking writ of habeas corpus has no absolute

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right to appeal; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; Miller-El v.

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Cockrell, 537 U.S. 322, 335-36 (2003). If a court denies a petitioner’s petition, the court may

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only issue a certificate of appealability when a petitioner makes a substantial showing of the

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denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Where, as here, the court denies habeas

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relief on procedural grounds without reaching the underlying constitutional claims, the court

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should issue a certificate of appealability “if jurists of reason would find it debatable whether the

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petition states a valid claim of the denial of a constitutional right and that jurists of reason would

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find it debatable whether the district court was correct in its procedural ruling.” Slack v.

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McDaniel, 529 U.S. 473, 484 (2000). In the present case, the court finds that reasonable jurists

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would not find the court’s determination that the pending petition must be dismissed to be

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debatable or wrong. Thus, the court declines to issue a certificate of appealability.

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Accordingly,

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1.

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The findings and recommendations issued on October 7, 2022 (Doc. No. 8) are
adopted in full;

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2.

The petition for writ of habeas corpus (Doc. No. 1) is dismissed;

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3.

Petitioner’s motion to proceed in forma pauperis (Doc. No. 2) is denied as having

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been rendered moot by this order;

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4.

The court declines to issue a certificate of appealability; and

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5.

The Clerk of the Court is directed to close this case.

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IT IS SO ORDERED.

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Dated:

November 17, 2022
UNITED STATES DISTRICT JUDGE

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