Garvie v. Bennett

Opinion

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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 pro se petitioner Eugene Brian Garvie’s 14 Federal Rule of Civil Procedure 60(b)(4) “Motion for Relief From Judgment 15 Recharacterization,” Dkt. 19. 16 The Court adopted Magistrate Judge Grady J. Leupold’s Report and 17 Recommendation (R&R), Dkt. 9, denied Garvie’s habeas petition, denied a Certificate of 18 Appealability under 28 U.S.C. § 2253(c)(2), and dismissed the case without prejudice. 19 Dkt. 13. This Court agreed with the R&R that Garvie’s petition was a second or 20 successive habeas petition; it was in fact his third. Garvie appealed. Dkt. 16. 21 Garvie’s new post-judgment motion objects to the recharacterization of his § 2241 22 petition as a § 2254 petition, asks the Court to re-open his habeas, void the Order 1 adopting the R&R, and enter a new Order “consistent with reasonable jurists.” Dkt. 19 at 2 2. Alternatively, he asks the Court to file his notice of appeal of the denial of his motion

3 for relief from judgment. Id. 4 The R&R squarely addressed and rejected Garvie’s claim that his petition is a § 5 2241 petition, not a § 2254 petition: 6 Although Petitioner indicates he is filing a § 2241 petition and uses the standard form for such petitions, he is currently confined pursuant to the 7 state court judgment of conviction entered in State of Washington v. Eugene Brian Garvie, Superior Court of Snohomish County Cause No. 06-1- 8 01151-6. Dkt. 1-1 at 1. As such, the Proposed Petition is construed as one filed under 28 U.S.C. § 2254, which is the only available mechanism for 9 Petitioner to challenge his current confinement in federal court. See Dominguez v. Kernan, 906 F.3d 1127, 1135–36 (9th Cir. 2018) (“[Section 10 2254] ‘is the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the petitioner is not 11 challenging his underlying state court conviction.’”) (quoting White v. Lambert, 370 F.3d 1002, 1009–10 (9th Cir. 2004)). The Court notes that 12 this is well known to Petitioner, as he has previously filed a similar § 2241 petition challenging his current confinement to no avail. See Garvie, No. 13 2:24-cv-00232-RAJ, at Dkt. 8.

14 Dkt. 9 at 4. 15 The Court will not void or vacate its prior Order, and it will not issue a Certificate 16 of Appealability under 28 U.S.C. § 2253(c)(2). This is a second or successive § 2254 17 habeas petition, and the Court does not have jurisdiction over it. Garvie must obtain an 18 order from the Court of Appeals authorizing the district court to consider the petition. 28 19 U.S.C. § 2244(b)(3); Rule 9 of the Habeas Rules; Ninth Circuit Rule 22-3; see also 20 Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). In the absence of such an order 21 authorizing review, a district court lacks jurisdiction to consider a second or successive 22 1 petition. See Magwood, 561 U.S. at 331; Burton v. Stewart, 549 U.S. 147, 157 (2007).” 2 Dkt. 9 at 5.

3 Garvie’s motion, Dkt. 19, is DENIED. The case remains closed. 4 IT IS SO ORDERED. 5 Dated this 9th day of September, 2024. A 6 7 BENJAMIN H. SETTLE 8 United States District Judge

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