(HC) Shrader v. Warden, FCI Mendota, No. 1:2021cv00873 - Document 10 (E.D. Cal. 2021)

Court Description: ORDER ADOPTING 5 Findings and Recommendations to Dismiss Petition for Writ of Habeas Corpus, signed by District Judge Dale A. Drozd on 10/13/2021. 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 THOMAS C. SHRADER, 12 Petitioner, 13 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS v. 14 15 No. 1:21-cv-00873-NONE-SKO (HC) WARDEN, FCI MENDOTA, (Doc. No. 5) Respondent. 16 17 Petitioner Thomas C. Shrader is a federal prisoner proceeding pro se and in forma 18 pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. This 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 June 7, 2021, the assigned magistrate judge issued findings and recommendations 22 recommending that the pending petition be dismissed for lack of jurisdiction. (Doc. No. 5.) 23 Those findings and recommendations were served upon all parties and contained notice that any 24 objections thereto were to be filed within twenty-one (21) days after service. (Id. at 6.) Petitioner 25 has filed two sets of objections (Doc. Nos. 7 & 9) and a documented that was titled as a motion of 26 addendum (Doc. No. 8). 27 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 28 de novo review of the case, including petitioner’s objections and addendum. Petitioner contends 1 1 that the court has jurisdiction over the pending petition under 28 U.S.C. § 2255(e). However, 2 none of petitioner’s objections establish any flaw in the magistrate judge’s reasoning set forth in 3 the findings and recommendations. See Allen v. Ives, 950 F.3d 1184 (9th Cir. 2020) (addressing 4 the limited situations under which a challenge to career-offender status under § 2241 may be 5 permitted), petition for rehearing en banc denied, 976 F.3d 863 (9th Cir. 2020) (clarifying the 6 limited nature of that avenue of relief). Petitioner’s addendum, which relates to the case of Bill 7 Cosby, is inapplicable here. (See Doc. No. 8.) 8 In addition, the court declines to issue a certificate of appealability. A prisoner seeking a 9 writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition. 10 An appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-336 11 (2003); see also 28 U.S.C. § 2253. Moreover, a certificate of appealability is required for a 12 successive § 2255 motion that is disguised as a § 2241 petition. Harrison v. Ollison, 519 F.3d 13 952, 958 (9th Cir. 2008); Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001). If a court denies 14 a petitioner’s petition, the court may only issue a certificate of appealability when a petitioner 15 makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To 16 make a substantial showing, the petitioner must establish that “reasonable jurists could debate 17 whether (or, for that matter, agree that) the petition should have been resolved in a different 18 manner or that the issues presented were ‘adequate to deserve encouragement to proceed 19 further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 20 880, 893 (1983)). 21 In the present case, the court finds that petitioner has not made the required substantial 22 showing of the denial of a constitutional right to justify the issuance of a certificate of 23 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 24 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 25 proceed further. Thus, the court therefore declines to issue a certificate of appealability. 26 Accordingly, 27 1. 28 The findings and recommendations issued on June 7, 2021, (Doc. No. 5), are adopted in full; 2 1 2. The petition for writ of habeas corpus is dismissed; 2 3. The court declines to issue a certificate of appealability; and 3 4. The Clerk of the Court is directed to assign a district judge to this case for the 4 purpose of closing the case and then to close the case. 5 IT IS SO ORDERED. 6 7 Dated: October 13, 2021 UNITED STATES DISTRICT JUDGE 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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