Opinion
No. 1:19-cv-00026-DAD-JLT
10-22-2019
JASON BEST, Petitioner, v. S. LAKE, Warden, Respondent.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING RESPONDENT'S MOTION TO DISMISS, AND DENYING PETITION FOR WRIT OF HABEAS CORPUS
(Doc. Nos. 1, 16, 17)
Petitioner Jason Best is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304.
On June 12, 2019, respondent filed a motion to dismiss the petition on the grounds that petitioner failed to exhaust his administrative remedies and that the court lacked jurisdiction over his claims. (Doc. No. 16.) On July 29, 2019, the assigned magistrate judge issued findings and recommendations, recommending that the motion to dismiss be denied but that the petition for writ of habeas corpus be denied on the merits. (Doc. No. 17.) The findings and recommendations were served on the parties and contained notice that any objections were to be filed within twenty-one days from the date of service of that order. To date, no party has filed objections to the findings and recommendations, and the time in which to do so has now passed.
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a de novo review of the case. Having carefully reviewed the entire file, the court concludes that the findings and recommendations are supported by the record and proper analysis.
In addition, "[t]he plain language of 28 U.S.C. § 2253(c)(1) does not require a [certificate of appealability] here because this is . . . an order denying a 28 U.S.C. § 2241 that is not a final order in a habeas proceeding in which the detention complained of arises out of process issued by a State court." Forde v. U.S. Parole Comm'n, 114 F.3d 878 (9th Cir. 1997) (citing Ojo v. INS, 106 F.3d 680, 681-82 (5th Cir. 1997) and Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)).
Accordingly,
1. The findings and recommendations issued on July 29, 2019 (Doc. No. 17) are adopted in full;IT IS SO ORDERED.
2. Respondent's motion to dismiss (Doc. No. 16) is denied;
3. The petition for writ of habeas corpus is denied on the merits with prejudice; and
4. The Clerk of Court is directed to close this case.
Dated: October 22 , 2019
/s/_________
UNITED STATES DISTRICT JUDGE