(HC) Rubio v. Warden

Opinion

CESAR GARFIO RUBIO, No. 2:23-cv-00983-CKD P Petitioner, v. ORDER AND WARDEN, FCI HERLONG, FINDINGS AND RECOMMENDATIONS Respondent. Petitioner, a federal prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The filing fee for this action has been paid. Under Rule 4 of the Rules Governing Section 2254 Cases, the court must review all petitions for writ of habeas corpus and summarily dismiss any petition if it is plain that the petitioner is not entitled to relief. See also Rule 1(b) of the Rules Governing Section 2254 Cases (permitting district courts to apply the Habeas Rules to § 2241 proceedings). The court has conducted that review and concludes that summary dismissal is warranted. A review of the docket in this case indicates that petitioner submitted the pending § 2241 petition to prison authorities for mailing on April 25, 2023. However, it was not docketed in this court until May 24, 2023. ECF No. 1. The eight page petition seeks 330 days of First Step Act credits applied to petitioner’s sentence resulting in an earlier release date in March 2024. This same claim is also raised in Rubio v. Warden, F.C.I. Herlong, No. 2:23-cv-00854-EFB (E.D. Cal.) (‘Rubio 1”), which was docketed in this court on May 8, 2023.' The habeas petition in Rubio 1 has been ordered served on respondent. This court has reviewed the § 2241 petition in the present case along with the pending petition in Rubio 1 and finds that they are identical. Because the § 2241 petition in Rubio 1 was docketed first, the present action should be dismissed based on its duplicative nature. Therefore, the undersigned recommends that petitioner’s § 2241 application be summarily dismissed as duplicative. Accordingly, IT IS HEREBY ORDERED that the Clerk of Court randomly assign this matter to a district court judge. IT IS FURTHER RECOMMENDED that: 1. Petitioner’s application for a writ of habeas corpus be summarily dismissed as duplicative. 2. The $5.00 filing fee paid for this action be returned to petitioner. 3. The Clerk of Court be directed to close this case. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations. Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). Dated: August 15, 2023 □□ I / dle ae CAROLYNK. DELANEY UNITED STATES MAGISTRATE JUDGE 12/rubi0983.F&R.duplicative Q_—_ x Sod ' A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).