Kliewer v. Bennett

UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA EUGENE KLIEWER, CASE NO. C24-5678 BHS Petitioner, ORDER 9 v. JASON BENNETT, 11 Respondent.

13 This matter is before the Court on Magistrate Judge Brian A. Tsuchida’s Report and Recommendation (R&R), Dkt. 8, recommending that the Court deny pro se Petitioner Eugene Kliewer’s application to proceed in forma pauperis, Dkt. 1, and dismiss this action with prejudice because: 17 (1) Petitioner is confined pursuant to state criminal convictions and challenges to these convictions must be brought under 28 U.S.C. § 2254[, 18 not § 2241]; (2) Section 2254 habeas relief is unavailable because Petitioner filed his 19 petition beyond the one year statute of limitations; (3) Petitioner’s guilty pleas to the crimes for which he was convicted 20 preclude habeas relief; and ([4]) Petitioner’s claim [that] his Fourth Amendment rights were violated 21 due to an unlawful arrest is not grounds for § 2254 relief.

22 Dkt. 8 at 2.

1 The R&R also recommends denying a certificate of appealability. Dkt. 8 at 2.

2 Kliewer has not objected to the R&R. He instead filed three “motions” that provide a citation to an apparently irrelevant case, request the Court to “enter an ORDER commanding the respondent to produce the entire record,” and request the Court “to ORDER the respondent to answer the petition.” Dkts. 9, 10, 11. None of these motions provide objections to the R&R. 7 A district court “shall make a de novo determination of those portions of the report or specified proposed finding or recommendations to which objection is made.” 28 9 U.S.C. § 636(b)(1)(C) (emphasis added); accord Fed. R. Civ. P. 72(b)(3). “The statute makes it clear that the district judge must review the magistrate judge’s findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). A proper objection requires “specific written objections to the proposed findings and recommendations” in the R&R. Fed. R. Civ. P. 72(b)(2).

15 The R&R, Dkt. 8, is ADOPTED, Kliewer’s application to proceed in forma pauperis, Dkt. 1, is DENIED, Kliewer’s motions, Dkts. 9, 10, 11, are DENIED, and this case is DISMISSED with prejudice. The Court DECLINES to issue a certificate of appealability because Kliewer has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).

20 The Clerk shall enter JUDGMENT and close this case.

21 // // // 2 Dated this 10th day of September, 2024.

A BENJAMIN H. SETTLE United States District Judge