ORDER DISMISSING HABEAS ACTION, DIRECTING CLERK OF COURT TO CLOSE CASE, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

DALE A. DROZD, District Judge.

On July 23, 2018, petitioner Randall McBride filed a federal habeas petition brought pursuant to 28 U.S.C. § 2241. (Doc. No. 1.) Therein, petitioner challenged his 2016 conviction and sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and possessing an unregistered firearm, in violation of 26 U.S.C. § 5861(d). On November 5, 2019, the court granted respondent's motion to dismiss the petition and ordered petitioner to notify the court whether he wished to have his § 2241 petition construed as a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 or to voluntarily dismiss the instant action without prejudice to refiling his clams in a motion brought pursuant to 28 U.S.C. § 2255. (Doc. No. 27 at 2.)

To date, petitioner has not filed any notification with the court, and the time provided for doing so has passed. Accordingly, the court will dismiss the instant habeas action without prejudice to petitioner refiling his claims in a motion brought pursuant to 28 U.S.C. § 2255.

Having previously found that petitioner is not entitled to habeas relief, the court now turns to whether a certificate of appealability should issue. See Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008) ("Where a petition purportedly brought under § 2241 is merely a `disguised' § 2255 motion, the petitioner cannot appeal from the denial of that petition without a COA.") (citing Porter v. Adams, 244 F.3d 1006, 1006-07 (9th Cir. 2001)). A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253. To obtain a certificate of appealability under 28 U.S.C. § 2253(c), a petitioner "must make a substantial showing of the denial of a constitutional right, . . . includ[ing] showing that reasonable jurists could debate whether (or, for that matter, 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."'" Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). In the present case, the court finds that reasonable jurists would not debate or disagree with the court's determination that the pending petition brought pursuant to 28 U.S.C. § 2241 is a disguised motion for relief under § 2255 that should be dismissed. Nor would reasonable jurists find that petitioner should be allowed to proceed further. The court therefore declines to issue a certificate of appealability.

Accordingly:

IT IS SO ORDERED.