Opinion
Case No. 5:17-CV-01894-JFW-KES
12-12-2017
MICHAEL FIORITO, Petitioner, v. C. ENTZEL, Warden, Respondent.
ORDER ADOPTING FINAL REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other records on file herein, and the Final Report and Recommendation of the United States Magistrate Judge. No objections to the Report and Recommendation were filed. The Court accepts the findings and recommendations of the Magistrate Judge.
IT IS THEREFORE ORDERED that Judgment be entered dismissing the Petition without prejudice.
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, 2014 U.S. Dist. LEXIS 131448 at *2 (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 12, 2017
/s/_________
JOHN F. WALTER
UNITED STATES DISTRICT JUDGE Presented by: /s/_________
KAREN E. SCOTT
United States Magistrate Judge