Opinion
Case No. 5:17-cv-01867-JGB-KES
03-27-2018
JOSEPH BRIEN BUDDENBERG, Petitioner, v. WARDEN SWAIN, Respondent.
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition (Dkt. 1), the other records on file herein, and the Report and Recommendation ("R&R") of the United States Magistrate Judge (Dkt. 11). No objections to the R&R were filed, and the deadline for filing such objections has passed. Respondent filed responses to the R&R indicating that Petitioner has now been released from custody (Dkt. 12) and that Respondent forwarded a copy of the R&R to Petitioner's last known address (Dkt. 13.) The Court accepts the report, findings, and recommendations of the Magistrate Judge.
IT IS THEREFORE ORDERED that Judgment be entered dismissing the Petition and this action without prejudice for lack of prosecution and failure to obey the Court's orders.
The Court notes that, 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 (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: March 27, 2018
/s/_________
JESUS G. BERNAL
UNITED STATES DISTRICT JUDGE