Garvie v. Bennett

Opinion

1 2

5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 EUGENE BRIAN GARVIE, CASE NO. C24-1017 BHS 8 Petitioner, ORDER 9 v. 10 JASON BENNETT, 11 Respondent. 12

13 THIS MATTER is before the Court on Magistrate Judge Grady J. Leupold’s 14 Report and Recommendation (R&R), recommending the Court deny pro se petitioner 15 Eugene Brian Garvie’s second or successive 28 U.S.C. § 2241 habeas petition, deny a 16 Certificate of Appealability, and dismiss the case without prejudice. Dkt. 9. 17 The R&R was originally noted for August 1, 2024. Dkt. 9 at 1. On July 26, Garvie 18 filed a request for a copy of the R&R, asserting that “on 7/19/2024, the ‘Electronic Copy 19 Filed’ electronically (ECF) receipt was served, but not the Magistrate’s Report and 20 Recommendation.” Dkt. 10 at 1 (boldface omitted). That same day, the Clerk’s office 21 sent Garvie a copy of the R&R, and the Court renoted the R&R to August 9, 2024, to 22 1 provide Garvie 14 additional days to object. Dkts. 10, 11. Garvie has not filed any 2 objections to the R&R.

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 5 portion of the order that is clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a). The 6 district 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). A proper objection requires “specific written objections to the proposed

9 findings and recommendations” in the R&R. Fed. R. Civ. P. 72(b)(2). 10 Garvie’s habeas petition is his fourth such filing, and this Court does not have 11 subject matter jurisdiction over it: 12 Before a petitioner is allowed to file a second or successive petition, he must obtain an order from the Court of Appeals authorizing the district 13 court to consider the petition. 28 U.S.C. § 2244(b)(3); Rule 9 of the Habeas Rules; Ninth Circuit Rule 22-3; see also Woods v. Carey, 525 F.3d 886, 14 888 (9th Cir. 2008). In the absence of such an order authorizing review, a district court lacks jurisdiction to consider a second or successive petition. 15 See Magwood, 561 U.S. at 331; Burton v. Stewart, 549 U.S. 147, 157 (2007). 16 Dkt. 9 at 5. 17 The R&R is ADOPTED. The petition is DENIED, the Court will not issue a 18 Certificate of Appealability, and the case is DISMISED without prejudice. 19 The Clerk shall enter a JUDGMENT and close the case. 20 IT IS SO ORDERED. 21 // 22 1 Dated this 9th day of August, 2024. A 2 3 BENJAMIN H. SETTLE 4 United States District Judge

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22