Opinion
No. CV 11-115-TUC-FRZ (JCG)
10-04-2011
Bobby Joe Mann, Petitioner, v. Craig Apker, Respondent.
ORDER
Pending before the Court is a Report and Recommendation issued by United States Magistrate Judge Guerin that recommends denying Petitioner's habeas petition filed pursuant to 28 U.S.C. §2241. As throughly explained by Magistrate Judge Guerin, the petition must be denied as Petitioner fails to demonstrate any viable grounds entitling him to habeas relief.As Petitioner's objections do not undermine the analysis and proper conclusions reached by Magistrate Judge Guerin, Petitioner's objections are rejected and the Report and Recommendation is adopted.
The Court reviews de novo the objected-to portions of the Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court reviews for clear error the unobjected-to portions of the Report and Recommendation. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); see also Conley v. Crabtree, 14 F. Supp. 2d 1203, 1204 (D. Or. 1998).
Before Petitioner can appeal this Court's judgment, a certificate of appealability must issue. See 28 U.S.C. §2253(c) and Fed. R. App. P. 22(b)(1). Federal Rule of Appellate Procedure 22(b) requires the district court that rendered a judgment denying the petition made pursuant to 28 U.S.C. §2254 to "either issue a certificate of appealability or state why a certificate should not issue." Additionally, 28 U.S.C. §2253(c)(2) provides that a certificate may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." In the certificate, the court must indicate which specific issues satisfy this showing. See 28 U.S.C. §2253(c)(3). A substantial showing is made when the resolution of an issue of appeal is debatable among reasonable jurists, if courts could resolve the issues differently, or if the issue deserves further proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). 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 as the resolution of the petition is not debatable among reasonable jurists and does not deserve further proceedings.
Although Petitioner has brought his claims in a § 2241 petition, a certificate of appealability is required where a § 2241 petition attacks the petitioner's conviction or sentence. See Porter v. Adams, 244 F.3d 1006 (9th Cir. 2001).
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Accordingly, IT IS HEREBY ORDERED as follows:
(1) The Report and Recommendation (Doc. 12) is accepted and adopted.
(2) Petitioner's §2241 habeas petition is denied; this case is dismissed with prejudice.
(3) A Certificate of Appealability is denied and shall not issue.
(4) The Clerk of the Court shall enter judgment accordingly and close the file in this matter.
Frank R. Zapata
Senior United States District Judge