Johnson v. Bennett

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA MELVIN MARCUS JOHNSON, JR., CASE NO. C23-5188 BHS Petitioner, ORDER ADOPTING REPORT 8 v. AND RECOMMENDATION JASON BENNETT, et al., 10 Respondents.

12 This matter comes before the Court on Magistrate Judge Brian A. Tsuchida’s Report and Recommendation (“R&R”) recommending the Court deny Petitioner Melvin Marcus Johnson, Jr.’s 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus, Dkt. 1, because he seeks relief available under only 28 U.S.C. § 2255 and a § 2255 petition would now be time-barred. Dkt. 4. The Court agrees with the R&R that Johnson’s petition is improperly filed under § 2241.

18 The district court should grant an application for a Certificate of Appealability only if the petitioner makes a “substantial showing of the denial of a constitutional right.”

20 28 U.S.C. § 2253(c)(2). To obtain a Certificate of Appealability under 28 U.S.C. § 2253(c), a habeas petitioner must make a showing that reasonable jurists could debate whether, or agree that, “the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.”

2 Slack v. McDaniel, 529 U.S. 473, 483–84 (2000) (internal quotation marks omitted).

3 When the court denies a claim on procedural grounds, the petitioner must show that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. at 484.

7 Judge Tsuchida recommends the Court dismiss Johnson’s petition because it was improperly filed as a § 2241 petition rather than a § 2255 petition. The Court is adopting that recommendation and the case is therefore being dismissed on procedural grounds.

10 No reasonable jurist could conclude the Court is incorrect in its procedural ruling. Thus, a Certificate of Appealability is not warranted in this case.

12 The Court, having considered the R&R and the remaining record, and no objections having been filed, does hereby order as follows: 14 (1) The R&R is ADOPTED; 15 (2) Petitioner’s 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus, Dkt. 1, is DISMISSED with prejudice; 17 (3) Johnson is denied a Certificate of Appealability; and 18 (4) The Clerk is directed to send copies of this Order to the parties and to Judge Tsuchida.

20 // // // 1 Dated this 4th day of April, 2023.

A BENJAMIN H. SETTLE United States District Judge