Opinion
Case No. 5:17-cv-02158-JFW-KES)
03-29-2019
MICHAEL FIORITO, Petitioner, v. WARDEN ENTZEL, et al., Respondents.
ORDER ACCEPTING THE AMENDED REPORT AND RECOMMENDATION OF THE U.S. 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 initial Report and Recommendation of the United States Magistrate Judge (Dkt. 36), and the Amended Report and Recommendation of the United States Magistrate Judge (Dkt. 49). Further, the Court has engaged in a de novo review of those portions of the initial Report and Recommendation to which objections (Dkt. 43-1, Dkt. 47) have been made. The Court accepts the report, findings, and recommendations of the Magistrate Judge.
IT IS THEREFORE ORDERED that Petitioner's pending motions (Dkt. 20, 23, 24, 28-34) are DENIED and Judgment shall be entered dismissing the Petition with 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 U.S. Dist. LEXIS 131448 at *2, 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 29, 2019
/s/_________
JOHN F. WALTER
UNITED STATES DISTRICT JUDGE Presented by: /s/_________
KAREN E. SCOTT
United States Magistrate Judge