(HC) Melendez v. Barr

Opinion

JOSE A. MELENDEZ, No. 1:20-cv-01773-DAD-SKO (HC) Petitioner, v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING Respondent. (Doc. No. 7) Petitioner Jose A. Melendez is a federal prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On January 5, 2021, the assigned magistrate judge issued findings and recommendations recommending that the pending petition for federal habeas relief be denied on the merits. (Doc. No. 7.) Specifically, the magistrate judge found that petitioner’s claim that he was entitled to additional time credits on his federal sentence for the period of time he spent in custody prior to his sentencing was “without merit” because that period of time petitioner spent in custody prior to the imposition of sentence “was duly credited toward [p]etitioner’s sentence” and that he was simply incorrect in contending otherwise (Id. at 4–5.) Those pending findings and recommendations were served upon all parties and contained notice that any objections thereto were to be filed within twenty-one (21) days after service. (Id. at 5.) The findings and recommendations served on petitioner at his address of record were returned to the court as “undeliverable, refused” on February 1, 2021. Local Rule 183(b) requires aparty appearing in propria persona to keep the court advised as to his or her current address. If mail directed to a plaintiff in propria persona by the Clerk of the Court is returned by the U.S. Postal Service, and the plaintiff fails to notify the court within sixty-three (63) days thereafter of a current address, then the court may dismiss the action without prejudice for failure to prosecute. L.R. 183(b). The time for filing objections or notifying the court of an updated address has passed and no objections or notice of updated address have been filed. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court concludes that the magistrate judge’s findings and recommendations are supported by the record and proper analysis. In the event a notice of appeal is filed, a certificate of appealability will not be required because this is not a final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court. Forde v. U.S. Parole Commission, 114 F.3d 878 (9th Cir. 1997). Accordingly, 1. The findings and recommendations issued on January 5, 2021 (Doc. No. 7) are adopted in full; 2. The petition for writ of habeas corpus is denied; 3. No certificate of appealability is required; and 4. The Clerk of Court is directed to close this case. IT IS SO ORDERED. me □ Dated: _ April 29, 2021 Yole A Lara UNITED STATES DISTRICT JUDGE