Juan Correa-Gutierrez v. Warden

Opinion

O

JUAN CORREA-GUTIERREZ, Case No. 2:23-cv-08911-CBM-KES

Petitioner, ORDER ACCEPTING REPORT AND v. RECOMMENDATION OF U.S.

Respondent.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition (Dkt. 1), the

other records on file herein, and the Report and Recommendation of the U.S.

Magistrate Judge (Dkt. 5). No objections to the Report and Recommendation were filed, and the deadline for filing such objections has passed. The Court accepts the report, findings, and recommendations of the Magistrate Judge. IT IS THEREFORE ORDERED that Judgment be entered dismissing the Petition without prejudice for failure to exhaust administrative remedies. As a federal prisoner proceeding under 28 U.S.C. § 2241, Petitioner is not required to obtain a certificate of appealability (“COA”) in order to appeal to the United States Court of Appeals in this case. See Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008) (holding that the plain language of 28 U.S.C. § 2253(c)(1) does not require federal prisoners bringing § 2241 petitions to obtain a COA in order to appeal, unless the § 2241 petition “is merely a ‘disguised’ § 2255 petition’’); see e.g., Tomlinson v. Caraway, No. 14-cv-020094-VBF-KK, 2014 U.S. Dist. LEXIS 131448 at *2, 2014 WL 4656432 at *1 (C.D. Cal. Sept. 16, 2014) (adopting report and recommendation and noting that petitioner in federal custody was not required to obtain a COA to appeal the denial of his § 2241 petition). DATED: APRIL 3,2024 ESS NR a CONSUELO B. MARSHALL UNITED STATES DISTRICT JUDGE