Opinion
No. 1:19-cv-00482-DAD-EPG (HC)
11-05-2019
RANDALL MCBRIDE, Petitioner, v. D. SHINN, Respondent.
ORDER ADOPTING FINDINGS AND RECOMMENDATION, GRANTING RESPONDENT'S MOTION TO DISMISS, AND DENYING PETITIONER'S MOTION TO PROCEED TO MERITS
(Doc. No. 26)
Petitioner Randall McBride is a federal prisoner proceeding pro se and in forma pauperis 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 July 22, 2019, the assigned magistrate judge issued findings and recommendations, recommending that respondent's motion to dismiss be granted, petitioner's motion to proceed to the merits be denied; and that petitioner's § 2241 petition be construed as a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. (Doc. No. 26.) The findings and recommendations were served on the parties and contained notice that any objections were to be filed within thirty (30) days of the date of service of that order. To date, the parties have filed no objections, and the time to do has since 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 finds the findings and recommendation to be supported by the record and proper analysis.
Accordingly:
1. The July 12, 2019 findings and recommendations (Doc. No. 26) are adopted;
2. Respondent's motion to dismiss (Doc. No. 22) is granted;
3. Petitioner's motion to proceed to the merits (Doc. No. 23) is denied;
4. Within twenty-one (21) days from the date of service of this order, petitioner shall notify the court whether he would like to:
a. have his § 2241 petition construed as a § 2255 motion, which would be subject to a one-year limitation period and restrict his ability to file a "second or successive" § 2255 motion; OR
b. voluntarily dismiss the instant action without prejudice to the refiling of his claims in a motion brought pursuant to 28 U.S.C. § 2255.
IT IS SO ORDERED.
5. If petitioner fails to notify the court, the instant habeas action will be dismissed without prejudice to petitioner refiling his claims in a § 2255 motion.
Dated: November 5 , 2019
/s/_________
UNITED STATES DISTRICT JUDGE