Villasenor v. Bolster, No. 2:2019cv00525 - Document 14 (E.D. Va. 2020)

Court Description: FINAL ORDER. It is ORDERED that that the Court does hereby ADOPT and APPROVE the findings and recommendations set forth in 12 Report and Recommendations filed October 28, 2020. It is ORDERED that the Petition be DENIED and DISMISSED WITH PREJUDIC E. It is further ORDERED that judgment be entered in favor of the Respondent. A certificate of appealability is DENIED. Petitioner is ADVISED that he may seek a certificate from the United States Court of Appeals for the Fourth Circuit by filing a w ritten notice of appeal with the Clerk of the United States District Court, United States Courthouse, 600 Granby Street, Norfolk, Virginia 23510 within thirty (30) days. Signed by District Judge Robert G. Doumar on 12/21/2020. Copies mailed 12/22/2020. (jmey, )

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Villasenor v. Bolster Doc. 14 Case 2:19-cv-00525-RGD-LRL Document 14 Filed 12/22/20 Page 1 of 2 PageID# 102 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division LEONEL ERNESTO VILLASENOR, Petitioner, V. Civil Action No. 2:19-cv-525 MARK BOLSTER,WARDEN, Respondent. FINAL ORDER Before the Court is a Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2241 and the Respondent's response to the Petition. ECF No. 10. In his Petition, the pro se Petitioner seeks resentencing without the Career Offender enhancement based on the Ninth Circuit's decision in United States v. Sanchez-Fernandez,669 F. App'x 415 (9th Cir. 2016). The Petition was referred to a United States Magistrate Judge for report and recommendation pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Local Civil Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia. The Magistrate Judge's Report and Recommendation filed October 28, 2020, recommends dismissal of the Petition with prejudice. ECF No. 12. On November 19, 2020, the Petitioner filed objections to the Report and Recommendation. The Respondent has not responded to the Petitioner's objections and the time to do so has expired. The Court, having reviewed the record and examined the objections filed by Petitioner to the Report and Recommendation, and having made de novo findings with respect to the portions objected to, does hereby ADOPT and APPROVE the findings and recommendations set forth in the Report and Recommendation filed October 28, 2020. It is, therefore, ORDERED that the Dockets.Justia.com Case 2:19-cv-00525-RGD-LRL Document 14 Filed 12/22/20 Page 2 of 2 PageID# 103 Petition, ECF No. 1, be DENIED and DISMISSED WITH PREJUDICE. It is further ORDERED that judgment be entered in favor of the Respondent. Finding that the basis for dismissal ofPetitioner's § 2241 petition is not debatable, and alternatively finding that Petitioner has not made a "substantial showing of the denial of a constitutional right," a certificate of appealability is DENIED. 28 U.S.C. § 2253(c); see Rules Gov. § 2254 Cases in U.S. Dist. Cts. 11(a); Miller-El v. Cockrell, 537 U.S. 322, 335-38 (2003); Slack V, McDanieU 529 U.S. 473,483-85 (2000). Petitioner is ADVISED that because a certificate of appealability is denied by this Court, he may seek a certificate from the United States Court of Appeals for the Fourth Circuit. Fed. Rule App. Proc. 22(b); Rules Gov. § 2254 Cases in U.S. Dist. Cts. 11(a). If Petitioner intends to seek a certificate of appealability from the Fourth Circuit, he must do so within thirty (30) days from the date of this Order. Petitioner may seek such a certificate by filing a written notice of appeal with the Clerk of the United States District Court, United States Courthouse, 600 Granby Street, Norfolk, Virginia 23510. The Clerk shall forward a copy of this Final Order to Petitioner and to coimsel of record for the Respondent. It is so ORDERED. RoI^jCrt Yj.yiyi)U(yiai'A / . . . j gn^si)istrict Judae ROBERT G.boUMAR UNITED STATES DISTRICT JUDGE December ^^2020

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