Opinion
No. CV-14-02038-TUC-FRZ
08-10-2017
Larry D Brown-Bey, Petitioner, v. J.T. Startle, Warden, Respondent.
ORDER
Before the Court for consideration is the Report and Recommendation of the Magistrate Judge, recommending that the Amended Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus filed by Petitioner Larry D. Brown-Bey pro se - in which Petitioner challenges the calculation of his sentence by the Federal Bureau of Prisons (BOP) - be denied.
In its Order screening the Amended § 2241 Petition, the Court required the Respondent to answer the Amended Petition based on Petitioner's contention that he has exhausted all available administrative remedies by using the Bureau of Prisons' Administrative Remedies Process. (Doc. 15)
The Court issued its warnings, that Petitioner "must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Petitioner must not include a motion for other relief with a notice of change of address" and that "[f]ailure to comply may result in dismissal of this action."
The Court further warned that "[i]f Petitioner fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court)."
This matter was referred to the Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b); Rule 72 of the Federal Rules of Civil Procedure; and LRCiv 72.1 and 72.2 of the Rules of Practice of the United States District Court for the District of Arizona, for further proceedings and Report and Recommendation.
Magistrate Judge Bruce G. Macdonald issued his Report and Recommendation on May 1, 2017, recommending that the District Court enter an order:
(1) SUBSTITUTING J.T. Shartle, Warden, as Respondent for Louis Winn pursuant to Rule 25(d) of the Federal Rules of Civil Procedure and Rule 43(c)(2) of the Federal Rules of Appellate Procedure; and
(2) DENYING Petitioner's First Amended Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 10).
The Report and Recommendation includes a thorough analysis on the merits of the claim presented and sets forth the finding that the calculation of Petitioner's parole eligibility is correct and that "Petitioner has not met his burden to show that '[h]e is in custody in violation of the Constitution or laws or treaties of the United States.' 28 U.S.C. § 2241(c). [And] [a]s such, Petitioner is not entitled to habeas relief."
The Report and Recommendation further advised in relevant part that "[p]ursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. ... [and that] [f]ailure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.
No objections were filed.
The Report and Recommendation was filed on May 1, 2017 and a copy was mailed to Petitioner at the last address provided that same date.
On May 22, 2017, the envelope addressed to Petitioner by the Clerk of Court at the address provided at USP-Tucson and the Report and Recommendation were returned as undeliverable. Despite the Court's previous warning, no "notice of change of address" was filed.
Upon consideration of the Amended Petition for writ of habeas corpus, Respondent's answer, Petitioner's reply and the Report and Recommendation of the Magistrate Judge, the Court finds, having made a full and independent review under 28 U.S.C. § 636(b)(1)(C), that the Amended Petition shall be denied on the merits.
IT IS THEREFORE ORDERED that the Report and Recommendation (Doc. 28) is hereby ACCEPTED and ADOPTED as the findings of fact and conclusions of law of this Court;
IT IS THEREBY ORDERED that J.T. Shartle, Warden, is substituted as Respondent for Louis Winn pursuant to Rule 25(d), Fed.R.Civ.P. ;
IT IS FURTHER ORDERED that the First Amended Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 10) is DENIED;
IT IS FURTHER ORDERED that this case is DISMISSED; the Clerk of Court is directed to enter judgment accordingly.
Notwithstanding that no objection to the Report and Recommendation was filed,
IT IS FURTHER ORDERED that a certificate of appealability shall not issue. Before an appeal of this Court's judgment, a certificate of appealability must issue. See 28 U.S.C. § 2254(c); Fed.R.App.P. 22(b)(1). A certificate may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(3). A substantial showing is made if "reasonable jurists could debate whether . . . the petition should have been resolved in a different manner," or if "the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation omitted).
Upon review of the record - in light of the standards for granting a certificate of appealability - the Court concludes that a certificate shall not issue based on the Court's finding that the resolution of the petition is not debatable among reasonable jurists and does not deserve further proceedings.
Dated this 10th day of August, 2017.
/s/_________
Honorable Frank R. Zapata
Senior United States District Judge