(HC) Summers v. Howard, No. 1:2021cv00826 - Document 8 (E.D. Cal. 2021)

Court Description: ORDER ADOPTING 6 Findings and Recommendations and DISMISSING Petition, signed by District Judge Dale A. Drozd on 7/12/2021. Certificate of Appealability is Declined . CASE CLOSED. (Rivera, O)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 IRESHIA DANTE SUMMERS, 12 Petitioner, 13 14 No. 1:21-cv-00826-DAD-SKO (HC) v. MALCOLM J. HOWARD, 15 Respondent. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING PETITION (Doc. No. 6) 16 Petitioner Ireshia Dante Summers is a federal prisoner proceeding pro se and in forma 17 18 pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter was 19 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 20 302. 21 On May 25, 2021, the assigned magistrate judge issued findings and recommendations 22 recommending that the petition for federal habeas relief be dismissed due to lack of subject- 23 matter jurisdiction. (Doc. No. 6.) In particular, the magistrate judge found that petitioner failed 24 to satisfy the “savings clause” or “escape hatch” of § 2255(e), as required in order to proceed with 25 a § 2241 petition for federal habeas relief, “because he does not present a claim of actual 26 innocence or demonstrate that he has never had an unobstructed procedural opportunity to present 27 his claim.” (Id. at 4.) The pending findings and recommendations were served on petitioner at 28 his address of record and contained notice that any objections thereto were to be filed within 1 1 thirty (30) days of service. (Id. at 6.) On June 29, 2021, petitioner timely filed objections. (Doc. 2 No. 7). 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 4 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 5 objections, the court concludes that the findings and recommendations are supported by the 6 record and proper analysis. 7 In his objections to the pending findings and recommendations, petitioner states in 8 conclusory fashion that he is “factually innocent of the crime of conviction for possessing a stolen 9 firearm in a school zone and innocent of an error in the administration of his sentence.” (Doc. 10 No. 7 at 2.) But petitioner does not provide any facts or arguments in his objections or in his § 11 2241 petition to support his conclusory assertion of factual innocence. Petitioner simply does not 12 explain how he is allegedly factually innocent of the crime of conviction. Thus, petitioner’s 13 objections provide no basis upon which to reject the pending findings and recommendations. 14 Additionally, the court declines to issue a certificate of appealability. A petitioner seeking 15 writ of habeas corpus has no absolute right to appeal; he may appeal only in limited 16 circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). Rule 17 11 of the Rules Governing Section 2254 Cases requires that a district court issue or deny a 18 certificate of appealability when entering a final order adverse to a petitioner. See Ninth Circuit 19 Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). The court will issue a 20 certificate of appealability “if jurists of reason would find it debatable whether the petition states 21 a valid claim of the denial of a constitutional right and that jurists of reason would find it 22 debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 23 U.S. 473, 484 (2000). Here, reasonable jurists would not find the court’s decision to dismiss the 24 petition for lack of jurisdiction to be debatable or conclude that the petition should proceed 25 further. Thus, the court declines to issue a certificate of appealability. 26 Accordingly: 27 1. 28 The findings and recommendations issued on May 25, 2021 (Doc. No. 6) are adopted in full; 2 1 2. 2 The petition for writ of habeas corpus (Doc. No. 1) is denied for lack of subjectmatter jurisdiction; 3 3. The Clerk of the Court is directed to close this case; and 4 4. The court declines to issue a certificate of appealability. 5 6 IT IS SO ORDERED. Dated: July 12, 2021 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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