Juan Francisco Sandoval-Linares v. Matthew T. Albencer

Opinion

O

JUAN FRANCISCO SANDOVAL- Case No. 2:20-cv-00928-JVS-KES

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

v. MAGISTRATE JUDGE

MATTHEW T. ALBENCER, Field

Director, Immigration and Customs

Enforcement, et al.,

Respondents.

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

other records on file herein, and the Final Report and Recommendation of the

United States Magistrate Judge (Dkt. 23). 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 Respondents’ motion to dismiss (Dkt.

8) 1s granted and Judgment shall be entered dismissing the Petition for lack of subject matter jurisdiction. 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. 14-020094-VBF (KK), 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: December 14, 2020 1 qa VY /K-— JAMES V. SELNA // UNITED STATES DISTRICT JUDGE

Presented by:

°| Prom Seat KAREN E. SCOTT UNITED STATES MAGISTRATE JUDGE