Gresham v. Feather

Filing 23

ORDER: Magistrate Judge Sullivan's Findings and Recommendation 19 is adopted. The Petition 1 is Denied and this action is dismissed. A certificate of appealability and leave to proceed in forma pauperis on appeal is DENIED as petitioner has not made a substantial showing of the denial of a constitutional right. Signed on 8/20/2014 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
COREY GRESHAM,
Petitioner,

Case No. 3:14-cv-00596-SU

v.

ORDER

MARION FEATHER ,
Respondent.
_____________________________
MCSHANE, Judge:
Magistrate Judge Patricia Sullivan filed a Findings and Recommendation (ECF No. 19),
and the matter is now before this court. See 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b).
Proceeding pro se, petitioner Corey Gresham filed objections to the report. Accordingly, I have
reviewed the file of this case de novo. See 28 U.S.C. § 636(b)(1)(c); McDonnell Douglas Corp.
v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). I find no error and
conclude the report is correct.
Petitioner first objects to the denial of his motion for appointment of counsel. Petitioner
argues he “was lulled into a false sense of security from the magistrate’s positive praise in her
order denying appointment of counsel.” Objections, 3. As noted by Judge Sullivan in her order
denying appointment of counsel, the interests of justice did not support appointing counsel.
Based on his petition, his response, and his objections to the Findings and Recommendation,
petitioner is certainly able to articulate his grounds for relief. That petitioner’s arguments fail on
the merits does not mean he was unable to cogently present his arguments.
1 –ORDER

Additionally, appointment of counsel in this instance would be futile. As pointed out by
Judge Sullivan, petitioner is not entitled to habeas relief under 28 U.S.C. § 2241 because he is
not in custody in violation of the United States Constitution. Petitioner has no liberty interest in
being released prior to the expiration of his sentence. Petitioner does not challenge the
constitutionality of his sentence, but merely challenges the Bureau of Prison’s determination that
he is not suitable for the Residential Drug Abuse Program. Federal courts, however, lack
jurisdiction to review the Bureau of Prison’s determination to grant or deny a sentence reduction
for completion of Residential Drug Abuse Program. Reeb v. Thomas, 636 F.3d 1224, 1227 (9th
Cir. 2011).
Magistrate Judge Sullivan’s Findings and Recommendation (ECF No. 19) is adopted.
The petition (ECF No. 1) is DENIED and this is action is dismissed, with prejudice.
A certificate of appealability and leave to proceed in forma pauperis on appeal is
DENIED as petitioner has not made a substantial showing of the denial of a constitutional right.
IT IS SO ORDERED.
DATED this 20th day of August, 2014.

_______/s/ Michael J. McShane ________
Michael McShane
United States District Judge

2 –ORDER