(HC) Rockett v. Lepe

Opinion

JAMES ROCKETT, No. 1: 20-cv-00945-NONE-JDP (HC) Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS v. PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE, LEPE, et. al., DIRECTING THE CLERK OF COURT TO ASSIGN DISTRICT JUDGE AND CLOSE Respondent. CASE, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY (Doc. No. 5) Petitioner James Rockett, a federal prisoner, has petitioned the court in propria persona for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner seeks habeas relief in connection with certain actions allegedly taken by the Bureau of Prisons (“BOP”), namely the search of his cell and his placement in a special housing unit while he was awaiting a prison disciplinary hearing. (Doc. Nos. 1; 5 at 2.) This action was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. After a preliminary review under Rule 4 of the Rules Governing Section 2254, on July 15, 2020, the assigned magistrate judge issued findings and recommendations recommending dismissal of the petition based upon the conclusion that “[b]ecause petitioner’s claims turn on the conditions of his confinement,” as opposed to his custody, “this court has no subject matter jurisdiction over the petition under ///// ///// § 2241.”1 (Doc. No. 5 at 2.) Petitioner was provided thirty days to file any objections to the findings and recommendations. (Id. at 6.) To date, petitioner has not filed any objections. Having reviewed the pending findings and recommendations de novo pursuant to 28 U.S.C. § 636 (b)(1)(C), the court finds that the magistrate judge’s findings and recommendations are supported by the record and proper analysis and will adopt them in full. In addition, the court must consider whether to issue a certificate of appealability. When a court dismisses a petition for a writ of habeas corpus, it may only issue a certificate of appealability when “the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In the present case, petitioner has not made the required substantial showing. The court is not persuaded that reasonable jurists would find the court’s determination that petitioner is not entitled to federal habeas corpus relief wrong or debatable, or that they would conclude petitioner deserves encouragement to proceed further. The court therefore declines to issue a certificate of appealability. Accordingly, the court orders as follows: 1. The findings and recommendations, filed on July 15, 2020 (Doc. No. 5), is ADOPTED in full; 2. The petition for writ of habeas corpus (Doc. No. 1) is DISMISSED; 3. The court DECLINES to issue a certificate of appealability; and ///// ///// /////

1 Due to the lack of jurisdiction, the magistrate judge also found that the court could not grant other reliefs, such as injunctive relief and discovery of certain information, as requested by petitioner. (Doc. No. at 4–6.) wOAOe LOVE SIT AEE MMO OO IO er VM VI

4. The Clerk of Court is DIRECTED to assign a district judge to this case for the purpose of closing the case and then to enter judgment and close the case. IT IS SO ORDERED. a " Li. wh F Dated: _ September 8, 2020 Sea 1" S098 UNITED STATES DISTRICT JUDGE