(HC) Dunlap v. Arviza

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 CARL GENE DUNLAP, ) Case No.: 1:22-cv-1485 JLT CDB (HC) ) 12 Petitioner, ) ORDER ADOPTING FINDINGS AND ) RECOMMENDATIONS, DISMISSING PETITION 13 v. ) FOR WRIT OF HABEAS CORPUS, AND ) DIRECTING CLERK OF COURT TO ENTER 14 M. ARVIZA, ) JUDGMENT AND CLOSE CASE ) 15 Respondent. ) (Doc. 6) ) 16

17 Carl Gene Dunlap is a former1 federal prisoner with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2241, seeking review of a sentence imposed upon him in the Oregon District 19 Court. (Doc. 1 at 2.) Petitioner claims he was not properly awarded credit for time served, despite a 20 ruling that his federal and state sentences should run concurrently. (Id. at 2, 6-7.) 21 The assigned magistrate judge performed a preliminary review of the petition and observed 22 “Petitioner brings a § 2241 petition after having brought a § 2255 petition in the sentencing court in 23 which he raised precisely the same issue as presented here – whether his sentence is properly 24 calculated as having been imposed concurrent with an undischarged state court-imposed sentence.” 25 (Doc. 6 at 4.) The magistrate judge found that to the extent Petitioner challenges the imposition and 26 27 1 A search of the Bureau of Prisons inmate locator database shows Petitioner, BOP Register No. 76624-065, is “[n]ot in 28 BOP [c]ustody as of: 01/05/2024.” See Find an Inmate, BOP Inmate Locator, https://www.bop.gov/inmateloc/ (last visited een eee I IEEE II IEEE ISI SIE IE

1 || validity of his sentence from the sentencing court, “this Court lacks jurisdiction to entertain the claim 2 || Ud.) Although the Court has jurisdiction over a challenge to the calculation of his sentence by the 3 || BOP, the magistrate judge found “the same issue that was conclusively decided in the earlier habeas 4 || action” by the Oregon District Court. (Ud. at 4-5.) Therefore, the magistrate judge determined “the 5 || instant petition is barred under the abuse of the writ doctrine” (id. at 4), and recommended the petitio 6 || be dismissed. (/d. at 6.) 7 The Court served the Findings and Recommendations on Petitioner at the only address of 8 || record and notified him that any objections were due within 14 days. However, the U.S. Postal 9 || Service returned the Findings and Recommendations as “Undeliverable, No Longer at this Address.” 10 || Nevertheless, service upon Petitioner is deemed fully effective. See Local Rule 182(f) (“Each ... pro 11 || se party is under a continuing duty to notify the Clerk and all other parties of any change of address o 12 || telephone number of the attorney or the pro se party. Absent such notice, service of documents at the 13 || prior address of the attorney or pro se party shall be fully effective.”). 14 According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case. 15 || Having carefully reviewed the matter, the Court concludes the Findings and Recommendations are 16 || supported by the record and proper analysis. Thus, the Court ORDERS: 17 1. The findings and recommendations issued on December 17, 2024 (Doc. 6), are 18 ADOPTED in full. 19 2. The petition for writ of habeas corpus is DISMISSED with prejudice. 20 3. The Clerk of Court is directed to close the case. 21 In the event a notice of appeal is filed, a certificate of appealability is not required.” 22 23 IT IS SO ORDERED. 24 Dated: _ January 13, 2025 ( pup LL. | Ws h \ 25 TED STATES DISTRICT JUDGE 26 27 2 A certificate of appealability will not be required because this is an order denying a petition for writ of habeas corpus 28 || Frocess issued by a siate court, Forde v. US. Parole Commission, IL F-3d 878 (Sth Cir. 1997); see also Ojo v. INS. 106 F.3d 680, 681-682 (Sth Cir. 1997); Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996).