Garvie v. Bennett

• Court: District Court, W.D. Washington
• Decided: May 23, 2024
• Docket: 2:24-cv-00336
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 EUGENE BRIAN GARVIE, CASE NO. C24-0336 8 Petitioner, ORDER 9 v. 10 JASON BENNETT, 11 Respondent. 12

13 THIS MATTER is before the Court on Magistrate Judge Michelle Peterson’s 14 Report and Recommendation (R&R), Dkt. 4, recommending that the Court deny pro se 15 petitioner Eugene Garvie’s 28 U.S.C. § 2254 habeas corpus petition, Dkt. 1, as a second 16 or successive petition, deny his request for a § 2253(c) Certificate of Appealability, and 17 dismiss the case. 18 The R&R explains that Garvie pled guilty in 2007, and that he has already filed 19 two prior habeas petitions related to that conviction. Dkt. 4 at 2. Garvie also sought in 20 2021 a writ of mandamus related to his conviction and sentence. The R&R concludes that 21 this Court does not have subject matter jurisdiction over a second or successive habeas 22 1 petition unless the petitioner has obtained permission to file such a petition from Ninth 2 Circuit. Id. (citing 28 U.S.C. 2244(b)(3)(A)).

3 A district judge must determine de novo any part of a magistrate judge’s proposed 4 disposition to which a party has properly objected. It must modify or set aside any portion 5 of the order that is clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a). The district 6 judge may accept, reject, or modify the recommended disposition; receive further 7 evidence; or return the matter to the magistrate judge with instructions. Fed. R. Civ. P. 8 72(b)(3).

9 A proper objection requires “specific written objections to the proposed findings 10 and recommendations” in the R&R. Fed. R. Civ. P. 72(b)(2). In providing for a de novo 11 determination, Congress “intended to permit whatever reliance a district judge, in the 12 exercise of sound judicial discretion, chose to place on a magistrate’s proposed findings 13 and recommendations.” United States v. Raddatz, 447 U.S. 667, 676 (1980) (internal

14 quotation marks omitted). Thus, the district court is required only to indicate that it 15 reviewed the record de novo and found no merit to the objections in order to summarily 16 adopt the R&R’s analysis. United States v. Ramos, 65 F.4th 427, 433 (9th Cir. 2023). The 17 district court is not obligated to “expressly address” every objection. Id. at 437. 18 Garvie has objected to the R&R and its conclusions and recommendations. Dkt. 6.

19 But he has not demonstrated (as he must) that the R&R’s legal conclusions are clearly 20 erroneous or contrary to law. Rule 72(a). 21 Instead, Garvie complains the R&R failed to order the respondent to produce a 22 copy of his judgment, sentence, and other documents. Dkt. 6 at 1. He argues the R&R 1 failed to take judicial notice, and that he was entitled “to be heard.” Id. Garvie claims he 2 is entitled to an evidentiary hearing, and that the R&R “asserted improper defenses,”

3 “sandbagging” him. Id. at 2. Garvie does not address the Court’s jurisdiction over his 4 second or second habeas petition. His objections are improper and ineffective. 5 The R&R is ADOPTED. Garvie’s §2254 petition is DENIED as an unauthorized 6 second or successive petition. The Court will NOT issue a Certificate of Appealability 7 for the reasons articulated in the R&R. 8 The Clerk shall enter a JUDGMENT and close the case.

9 IT IS SO ORDERED. 10 Dated this 23rd day of May, 2024. A 11 12 BENJAMIN H. SETTLE 13 United States District Judge

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