Johnson v. Bennett

Opinion

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4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 MELVIN MARCUS JOHNSON, JR., CASE NO. C23-5188 BHS 7 Petitioner, ORDER ADOPTING REPORT 8 v. AND RECOMMENDATION 9 JASON BENNETT, et al., 10 Respondents. 11

12 This matter comes before the Court on Magistrate Judge Brian A. Tsuchida’s 13 Report and Recommendation (“R&R”) recommending the Court deny Petitioner Melvin 14 Marcus Johnson, Jr.’s 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus, Dkt. 1, 15 because he seeks relief available under only 28 U.S.C. § 2255 and a § 2255 petition 16 would now be time-barred. Dkt. 4. The Court agrees with the R&R that Johnson’s 17 petition is improperly filed under § 2241. 18 The district court should grant an application for a Certificate of Appealability 19 only if the petitioner makes a “substantial showing of the denial of a constitutional right.” 20 28 U.S.C. § 2253(c)(2). To obtain a Certificate of Appealability under 28 U.S.C. 21 § 2253(c), a habeas petitioner must make a showing that reasonable jurists could debate 22 whether, or agree that, “the petition should have been resolved in a different manner or 1 that the issues presented were adequate to deserve encouragement to proceed further.” 2 Slack v. McDaniel, 529 U.S. 473, 483–84 (2000) (internal quotation marks omitted).

3 When the court denies a claim on procedural grounds, the petitioner must show that 4 “jurists of reason would find it debatable whether the petition states a valid claim of the 5 denial of a constitutional right and that jurists of reason would find it debatable whether 6 the district court was correct in its procedural ruling.” Id. at 484. 7 Judge Tsuchida recommends the Court dismiss Johnson’s petition because it was 8 improperly filed as a § 2241 petition rather than a § 2255 petition. The Court is adopting

9 that recommendation and the case is therefore being dismissed on procedural grounds. 10 No reasonable jurist could conclude the Court is incorrect in its procedural ruling. Thus, a 11 Certificate of Appealability is not warranted in this case. 12 The Court, having considered the R&R and the remaining record, and no 13 objections having been filed, does hereby order as follows:

14 (1) The R&R is ADOPTED; 15 (2) Petitioner’s 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus, Dkt. 1, is 16 DISMISSED with prejudice; 17 (3) Johnson is denied a Certificate of Appealability; and 18 (4) The Clerk is directed to send copies of this Order to the parties and to Judge

19 Tsuchida. 20 // 21 // 22 // 1 Dated this 4th day of April, 2023. A 2 3 BENJAMIN H. SETTLE 4 United States District Judge

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