1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAY D. LOUTHIAN, No. 1:22-cv-00510-DJC-SAB (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND

RECOMMENDATIONS, GRANTING

13 v. RESPONDENT’S MOTION TO DISMISS,

DISMISSING PETITION FOR WRIT OF

14 UNITED STATES, HABEAS CORPUS, DIRECTING CLERK OF

COURT TO CLOSE CASE, AND

15 Respondent. DECLINING TO ISSUE CERTIFICATE OF

APPEALABILITY

16 (ECF Nos. 6, 15) 17 18 Petitioner Ray D. Louthian is a federal prisoner proceeding pro se with a 19 petition for writ of habeas corpus purportedly brought pursuant to 28 U.S.C. § 2241. 20 This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 21 § 636(b)(1)(B) and Local Rule 302. 22 On February 27, 2023, the assigned Magistrate Judge issued findings and 23 recommendations recommending that the petition for writ of habeas corpus be 24 dismissed for lack of jurisdiction as Petitioner failed to satisfy the criteria to bring a 25 § 2241 petition pursuant to the savings clause of 28 U.S.C. § 2255(e). (ECF No. 15.) 26 The findings and recommendations were served on Petitioner and contained notice 27 that any objections were to be filed within thirty (30) days of the date of service of the 28 findings and recommendations. On March 17, 2023, Petitioner filed timely objections, 1 which the Court has considered. (ECF No. 16.) 2 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has 3 conducted a de novo review of the case. Having carefully reviewed the entire file, the 4 Court will adopt the recommendation of dismissal, but based upon the Supreme 5 Court’s decision in Jones v. Hendrix, 599 U.S. 465 (2023). In Jones, the Supreme Court 6 held “that § 2255(e)’s saving clause does not permit a prisoner asserting an 7 intervening change in statutory interpretation to circumvent AEDPA’s restrictions on 8 second or successive § 2255 motions by filing a § 2241 petition,” declaring that “[t]he 9 inability of a prisoner with a statutory claim to satisfy those conditions [required to 10 bring a second or successive § 2255 motion] does not mean that he can bring his 11 claim in a habeas petition under the saving clause. It means that he cannot bring it at 12 all.” Id. at 471, 480.1 13 Having found that Petitioner is not entitled to habeas relief, the Court now turns 14 to whether a certificate of appealability (COA) should issue. See Harrison v. Ollison, 15 519 F.3d 952, 958 (9th Cir. 2008) (“Where a petition purportedly brought under 16 § 2241 is merely a ‘disguised’ § 2255 motion, the petitioner cannot appeal from the 17 denial of that petition without a COA.”). A petitioner seeking a writ of habeas corpus 18 has no absolute entitlement to appeal a district court’s denial of his petition, and an 19 appeal is only allowed in certain circumstances. See Miller-El v. Cockrell, 537 U.S. 322, 20 335–36 (2003); 28 U.S.C. § 2253. To obtain a certificate of appealability under 28 21 U.S.C. § 2253(c), a petitioner “must make a substantial showing of the denial of a 22 constitutional right, . . . includ[ing] showing that reasonable jurists could debate 23 whether (or, for that matter, agree that) the petition should have been resolved in a 24 different manner or that the issues presented were ‘adequate to deserve 25 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 483–84 (2000) 26 1 “[W]here intervening Supreme Court authority is clearly irreconcilable with our prior circuit authority,” 27 the Ninth Circuit has held that “district courts should consider themselves bound by the intervening higher authority and reject the prior opinion of this court as having been effectively overruled.” Miller v. 28 Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). 1 | (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). 2 In the present case, the Court finds that reasonable jurists would not find the 3 | Court's determination that the petition should be dismissed debatable or wrong, or 4 | that Petitioner should be allowed to proceed further. Therefore, the Court declines to 5 || issue a certificate of appealability. 6 Accordingly, IT |S HEREBY ORDERED THAT: 7 1. The findings and recommendations issued on February 27, 2023 (ECF No. 8 15) are adopted with respect to the recommendation of dismissal of the 9 petition; 10 2. Respondent's motion to dismiss (ECF No. 6) is granted; 11 3. The petition for writ of habeas corpus is dismissed; 12 4. The Clerk of Court is directed to close the case; and 13 5. The Court declines to issue a certificate of appealability. 14 15 IT IS SO ORDERED. 16 | Dated: _February 24, 2025 “Daal A CoO □□□□ Hon. Daniel alabretta 7 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28