United States District Court, E.D. California
ORDER
ADOPTING FINDINGS AND RECOMMENDATIONS (DOC. NO. 12) ORDER
GRANTING RESPONDENT'S MOTION TO DISMISS (DOC. NO. 11)
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS ORDER
DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE
ORDER DECLINING TO ISSUE CERTIFICATE OF
APPEALABILITY
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE.
Petitioner
is a federal prisoner proceeding in propria persona with a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. On November 20, 2019, the Magistrate Judge
assigned to the case issued Findings and Recommendation to
grant Respondent's motion and deny the petition. (Doc.
Nos. 11, 12.) This Findings and Recommendation was served
upon all parties and contained notice that any objections
were to be filed within thirty (30) days from the date of
service of that order. On December 6, 2019, Petitioner filed
objections to the Magistrate Judge's Findings and
Recommendations. (Doc. No. 13.) Respondent did not file a
reply.
In
accordance with the provisions of 28 U.S.C. § 636
(b)(1)(C), the Court has conducted a de novo review of the
case. Petitioner raises several objections which the Court
will address. First, Petitioner objects to the Magistrate
Judge's finding that Petitioner failed to exhaust his
administrative remedies. (Doc. No. 13 at 2.) Petitioner
states he attempted to file his BP-11 appeal, but for
whatever reason, it was not transmitted to the appeals
office. Assuming Petitioner exhausted his administrative
remedies, it is clear he is not entitled to relief on his
claims.
Petitioner
concedes he is not entitled to credit for any time spent in
custody from the time he was arrested on March 25, 2015,
until March 25, 2016. (Doc. No. 13 at 2-3.) He claims,
however, that he is entitled to credit for the time period
from March 25, 2016, until April 17, 2017, because that
period of incarceration was not credited toward any sentence.
(Doc. 13 at 3.) Petitioner's contention is incorrect.
That period of time was credited against his state sentence.
As noted by the Magistrate Judge, a parole revocation hearing
was held on March 13, 2015, and parole was revoked. (Doc.
11-2 at 31.) Petitioner was returned to state custody to
serve the remainder of his eight-year term, with the maximum
release date set for June 22, 2017. (Doc. 11-2 at 13.)
Petitioner is not entitled to credit against his federal
sentence for this time period as that would constitute double
credit, which is barred under 18 U.S.C. § 3585(b).
See United States v. Wilson, 503 U.S. 329, 337
(1992).
Petitioner
also complains that he did not receive a copy of
Respondent's motion to dismiss and therefore did not
receive notice and an opportunity to respond. Petitioner did
file objections to the Magistrate Judge's Findings and
Recommendations, however, and the Court has considered all of
his arguments. Therefore, the Court finds that Petitioner has
been given notice and opportunity to present his opposition
to dismissal.
Having
carefully reviewed the entire file, including
Petitioner's objections, the Court concludes that the
Magistrate Judge's Findings and Recommendation is
supported by the record and proper analysis. Petitioner's
objections present no grounds for questioning the Magistrate
Judge's analysis.
In
addition, the Court declines to issue a certificate of
appealability. A prisoner seeking a writ of habeas corpus has
no absolute entitlement to appeal a district court's
denial of his petition, and an appeal is only allowed in
certain circumstances. Miller-El v. Cockrell, 537
U.S. 322, 335- 336 (2003). The controlling statute in
determining whether to issue a certificate of appealability
is 28 U.S.C. § 2253, which provides as follows:
(a) In a habeas corpus proceeding or a proceeding under
section 2255 before a district judge, the final order shall
be subject to review, on appeal, by the court of appeals for
the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a
proceeding to test the validity of a warrant to remove to
another district or place for commitment or trial a person
charged with a criminal offense against the United States, or
to test the validity of such person's detention pending
removal proceedings.
(c)(1) Unless a circuit justice or judge issues a certificate
of appealability, an appeal may not be taken to the court of
appeals from-
(A) the final order in a habeas corpus proceeding in which
the detention complained of arises out of process issued by a
State court; or (B) the final order in a proceeding under
section 2255.
(2) A certificate of appealability may issue under paragraph
(1) only if the applicant has made a substantial showing of
the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1)
shall indicate which specific issue or issues satisfy the
...