Brent Blake v. W.S. Pilier

Opinion

BRENT BLAKE, Case No. ED CV 19-02442-RGK (PD)

Petitioner, ORDER ACCEPTING REPORT v. AND RECOMMENDATION OF UNITED STATES FELIPE MARTINEZ, JR.,1 MAGISTRATE JUDGE Respondent.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records on file, and the Report and Recommendation of United States Magistrate Judge. No objections to the Report and Recommendation have been filed. The Court accepts the Magistrate Judge’s Report and adopts it as its own findings and conclusions. IT IS THEREFORE ORDERED that Judgment will be entered dismissing the Petition without prejudice. 1 Felipe Martinez, Jr., became the Warden of the Federal Correctional Complex in Victorville, California, where Petitioner is currently incarcerated, and therefore is substituted for the previous Respondent. See Federal Rule of Civil Procedure 25(d).

As a federal prisoner proceeding under 28 U.S.C. § 2241, Petitioner is not required to obtain a certificate of appealability to appeal to the Ninth Circuit Court of Appeals in this case. See Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008) (plain language of 28 U.S.C. § 2253(c)(1) does not require federal prisoners bringing section 2241 petitions to obtain a certificate of appealability to appeal, unless the section 2241 petition is a section 2255 petition in disguise”); see e.g., Tomlinson v. Caraway, No. 14-2094-VBF (KK), 2014 WL 4656482, at *1 (C.D. Cal. 2014) (adopting report and recommendation and noting that petitioner in federal custody was not required to obtain a certificate of appealability to appeal the denial of his section 2241 petition). DATED: July 31, 2020. J “Oo \Reweanm UNITED STATES DISTRICT JUDGE