1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GARETH LORENZO PERRY, No. 1:20-cv-01494-NONE-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND

RECOMMENDATIONS TO DISMISS

13 v. HABEAS PETITION 14 UNITED STATES BOP CASE (Doc. Nos. 1, 8)

MANAGER CERROTE,

15 Respondent. 16 17 Petitioner Gareth Lorenzo Perry is a state prisoner proceeding in propria persona with a 18 pleading styled as a “Petition for 2241 and 1983 claim.” (Doc. No. 1 at 1.) After screening 19 petitioner’s pleading, the assigned magistrate judge found, based on petitioner’s allegations, that 20 petitioner is only seeking civil rights relief concerning the conditions of his confinement and, 21 therefore, that federal habeas relief is not available to him with respect to those claims. (Doc. No. 22 8 at 1–2.) Accordingly, the magistrate judge recommended that the habeas petition pending 23 before this court be dismissed and the Clerk of Court be directed to provide petitioner a blank 24 civil rights form so he could file a separate Bivens1 action instead. (Id. at 3.) On November 30, 25 2020, petitioner filed objections to the pending findings and recommendations. (Doc. No. 9.) 26 ///// 27 1 See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 28 (1971). 1 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 2 de novo review of the case. In his objections, petitioner argues that he is seeking not only civil 3 rights reliefs concerning the conditions of his confinement, but also habeas relief concerning his 4 sentence. (Doc. No. 9 at 1.) Having reviewed his petition, the court notes that petitioner was 5 allegedly sentenced in both a state court in Alabama as well as a U.S. District Court and is 6 serving those sentences concurrently at the United States Penitentiary, Atwater. (Doc. No. 1 at 7 4.) It is unclear from petitioner’s habeas petition and objections, however, whether he is seeking 8 to challenge either his state or federal sentence. (Doc. Nos. 1, 9.) Nonetheless, it appears 9 petitioner may be attempting to seek habeas relief on grounds that his sentence should have been 10 based a lower criminal history category and that his right against double jeopardy was violated, 11 though his reference to “custody points” is confusing. (Doc. No. 1 at 1, 4.) 12 In any event, to the extent petitioner is seeking to challenge his federal conviction or 13 sentence under 28 U.S.C. § 2255, he must bring such petition before “the sentencing court rather 14 than the district where the prisoner is confined.” Braden v. 30th Judicial Circuit Court of 15 Kentucky, 410 U.S. 484, 497 (1973). To the extent petitioner is seeking to challenge his state 16 conviction or sentence under 28 U.S.C. § 2254, he must first adjudicate his claims in state-court 17 proceedings through the highest state court, which petitioner has not alleged to have done. See 18 Harrington v. Richter, 562 U.S. 86, 92 (2011). And to the extent petitioner is seeking relief under 19 28 U.S.C. § 2241, his current habeas petition is improper because he is not seeking to “challenge 20 the manner, location, or conditions of a sentence’s execution,” nor is he claiming that “his remedy 21 under § 2255 is ‘inadequate or ineffective to test the legality of his detention.’” Hernandez v. 22 Campbell, 204 F.3d 861, 864–65 (9th Cir. 2000). For these reasons, the recommendation to 23 dismiss petitioner’s habeas petition is well founded. As explained therein, the instant petition is 24 not amendable to conversion, so petitioner must file a new civil rights action or habeas petition in 25 the proper court by specifying which sentence or conviction (state or federal) he seeks to 26 challenge. The court therefore concludes that the pending findings and recommendations are 27 supported by the record and proper analysis. 28 ///// 1 The court must now turn to whether a certificate of appealability should be issued. A 2 || petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s 3 | denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El y. 4 | Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253. Courts should issue a certificate of 5 | appealability only if “reasonable jurists could debate whether (or, for that matter, agree that) the 6 | petition should have been resolved in a different manner or that the issues presented were 7 | ‘adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 8 | (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). In the present case, the court 9 | finds that reasonable jurists would not find the court’s determination that the petition should be 10 | dismissed debatable or wrong, or that petitioner should be allowed to proceed further. Therefore, 11 | the court declines to issue a certificate of appealability. 12 Accordingly, the court orders as follows: 13 1. The findings and recommendations, filed November 17, 2020 (Doc. No. 8), is 14 ADOPTED in full; 15 2. The petition for writ of habeas corpus (Doc. No. 1) is DISMISSED; 16 3. The court DECLINES to issue a certificate of appealability. 17 4. The Clerk of Court is DIRECTED to provide petitioner with blank forms for filing 18 a Bivens action; and 19 5. The Clerk of Court is DIRECTED to assign a district judge to this case for the 20 purpose of closing the case and then to enter judgment and close the case. 21 | IT IS □□ ORDERED. sass - Dated: _ December 14, 2020 Yel A. 7, yA 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28