Garvie v. Speer

• Court: District Court, W.D. Washington
• Decided: March 11, 2025
• Docket: 2:24-cv-02145
• Status: Unknown

Opinion

1 2 3 4

5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 EUGENE BRIAN GARVIE, CASE NO. 2:24-cv-02145-LK 11 Petitioner, ORDER ADOPTING REPORT AND 12 v. RECOMMENDATION AND DENYING MOTIONS AS MOOT 13 SCOTT SPEER, 14 Respondent. 15

16 This matter comes before the Court on the Report and Recommendation (“R&R”) of 17 United States Magistrate Judge Theresa L. Fricke. Dkt. No. 7. 18 I. BACKGROUND 19 Mr. Garvie, a state prisoner proceeding pro se, has filed yet another petition in this Court 20 for a writ of habeas corpus under 28 U.S.C. § 2241. Dkt. No. 4-2 at 1; Dkt. No. 7 at 1. Mr. Garvie 21 challenges the judgment and sentence against him in Snohomish County Superior Court case 22 number 06-1-01151-6. Dkt. No. 4-2 at 1–2. He alleges that he was denied his Sixth Amendment 23 right to counsel at a critical stage of the prosecution against him. Id. at 6. He has submitted six 24 proposed motions in conjunction with his petition: a Proposed Request for Certification, Dkt. No. 1 4-4; a Proposed Motion Requesting Brady Order, Dkt. No. 4-5; a Proposed Motion Requesting 2 Stand-by Counsel, Dkt. No. 4-6; a Proposed Motion Requesting Judicial Notice, Dkt. No. 4-10; a 3 Proposed Motion to Order to Show Cause, Dkt. No. 4-11; and a second Proposed Motion 4 Requesting Judicial Notice, Dkt. No. 8.

5 In her R&R, Judge Fricke recommends that this matter be dismissed without prejudice for 6 lack of jurisdiction because Mr. Garvie’s petition is a successive petition that has not been 7 authorized by the Ninth Circuit. Id. at 3. 8 Mr. Garvie objects to the R&R (1) “as a violation of 28 U.S.C. § 1915 based on the 9 preliminary screening voidness of Article III authorization,” (2) “as a violation of 28 U.S.C. § 636 10 based on failure to secure consent to entry of a decision on the [IFP] motion,” (3) “as a violation 11 of Habeas Rule 4 based on a defective service process not ‘promptly presented to and examined 12 by the judge to who it was assigned,’” (4) “as a violation to Habeas Rule 5 based on [Judge Fricke] 13 asserting procedural defense rather than the proper respondent,” (5) “as a violation of the 1st 14 Amendment right to appeal the order on [IFP] motion . . . since magistrate orders are not appealable

15 as a matter of right,” (6) “as a violation of the 14th Amendment right to procedural due process 16 based on circumventing the 28 U.S.C.S. § 2243 show cause requirement,” (7) for “enter[ing] a 28 17 U.S.C. § 1915 determination,” (8) for “fail[ing] to apply analysis pursuant to United States 18 [Supreme] Court precedent,” (9) for “misappl[ying] 28 U.S.C. § 2244(b)(3)(A) to a 28 U.S.C. 19 § 2241[] [and] thus recharacterizing the petition without notice to a 28 U.S.C. § 2254,” (10) for 20 “fail[ing] to apply 28 U.S.C. § 2243[] and command the respondent to show cause,” (11) for 21 “assert[ing] a factual predicate in violation of 28 U.S.C. § 2244(b)(2)(B)(i),” and (12) for “fail[ing] 22 to alert the [district] judge of numerous dispositive matters[.]” Dkt. No. 9 at 1–3. 23

24 1 II. DISCUSSION 2 This Court must “make a de novo determination of those portions of the report or specified 3 proposed findings or recommendations to which” a party objects. 28 U.S.C. § 636(b)(1); see Fed. 4 R. Civ. P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge’s

5 disposition that has been properly objected to.”); United States v. Reyna-Tapia, 328 F.3d 1114, 6 1121 (9th Cir. 2003) (en banc) (same). The Court “may accept, reject, or modify, in whole or in 7 part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see 8 Fed. R. Civ. P. 72(b)(3). However, the Federal Magistrates Act “does not on its face require any 9 review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 10 149 (1985); see Reyna-Tapia, 328 F.3d at 1121 (“[T]he district judge must review the magistrate 11 judge’s findings and recommendations de novo if objection is made, but not otherwise.” (emphasis 12 original)). 13 The Ninth Circuit has held that “28 U.S.C. § 2254 is the exclusive vehicle for a habeas 14 petition by a state prisoner in custody pursuant to a state court judgment[.]” White v. Lambert, 370

15 F.3d 1002, 1009–10 (9th Cir. 2004), overruled on other grounds by Hayward v. Marshall, 603 16 F.3d 546 (9th Cir. 2010) (en banc). Mr. Garvie’s petition for writ of habeas corpus is therefore 17 properly construed as one brought pursuant to § 2254. 18 Because at least one of Mr. Garvie’s previous petitions was denied on the merits, this 19 petition qualifies as successive, and the Court is without jurisdiction to consider it because he has 20 not obtained authorization from the Ninth Circuit to proceed. See Cooper v. Calderon, 274 F.3d 21 1270, 1273–74 (9th Cir. 2001) (per curiam); McNabb v. Yates, 576 F.3d 1029, 1029 (9th Cir. 2009) 22 (noting that a habeas petition “is second or successive only if it raises claims that were or could 23 have been adjudicated on the merits,” and a disposition is “on the merits” if the court “either

24 considers and rejects the claims or determines that the underlying claim will not be considered by 1 a federal court”). Specifically, Mr. Garvie has filed four previous petitions for writ of habeas 2 corpus under § 2254. The first habeas petition was dismissed with prejudice as untimely because 3 it was barred by the federal habeas corpus statute of limitations. See Garvie v. Washington, No. 4 2:18-cv-01371-JLR (W.D. Wash.) (filed Sept. 17, 2018), Dkt. Nos. 1, 9, 10, 13. His subsequent

5 three habeas petitions were all dismissed as second or successive petitions. Garvie v. Bennett, No. 6 2:24-cv-00232-RAJ (W.D. Wash.) (filed Feb. 16, 2024), Dkt. Nos. 1, 8, 14; Garvie v. Bennett, No. 7 2:24-cv-00336-BHS (W.D. Wash.) (filed March 12, 2024), Dkt. Nos. 1, 4, 8; Garvie v. Bennett, 8 No. 2:24-cv-01017-BHS (W.D. Wash.) (filed July 10, 2024), Dkt. Nos. 1, 9, 13. As with his 9 second, third, and fourth habeas petitions challenging the same judgment, the current petition is 10 considered successive for purposes of 28 U.S.C. § 2244(b). See 28 U.S.C. § 2244(a). This Court 11 only retains jurisdiction to consider a successive petition if the Ninth Circuit Court of Appeals has 12 expressly authorized it. See 28 U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147, 157 13 (2007) (finding that the district court lacked jurisdiction to consider the merits of a second or 14 successive petition absent circuit court authorization).1 However, Mr. Garvie has not provided

15 evidence of prior authorization from the Ninth Circuit to file the petition. Accordingly, this Court 16 lacks jurisdiction to reach the merits.2 17 Ninth Circuit Rule 22-3(a) states that “[i]f an unauthorized second or successive section 18 2254 petition . . . is submitted to the district court, the district court may, in the interests of justice, 19

20 1 Mr. Garvie asserts that the R&R incorrectly failed to conduct its “[s]uccessive analysis pursuant to 28 U.S.C. § 2244(b)” based on Sanders v. United States, 373 U.S. 1 (1963). Dkt. No. 9 at 2. However, Mr. Garvie does not 21 elaborate on this argument, and as set forth above, the Court has determined de novo that his petition is second or successive. 22 2 Mr. Garvie also asserts that the R&R failed to conduct a “[j]urisdiction analysis” pursuant to Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) and One Fair Wage, Inc. v. Darden Restaurants Inc., No. 21-16691, 2023 WL 23 2445690 (9th Cir. Mar. 10, 2023). Dkt. No. 9 at 2. However, this argument is unavailing because neither case concerns district courts’ jurisdiction to hear habeas petitions from state prisoners, as is the situation here. As noted above, the habeas jurisdictional analysis hinges on the Supreme Court’s instruction in Burton that circuit authorization to consider 24 the merits of a successive habeas petition is necessary to establish jurisdiction. 549 U.S. at 157. 1 refer it to the court of appeals.” However, the Circuit Advisory Committee Note for the rule also 2 states that the court may, in the alternative, “dismiss the filing without prejudice to the applicant 3 seeking authorization from the court of appeals on Ninth Circuit Form 12.” The Court elects to 4 follow the latter route.

5 Finally, the Court agrees with Judge Fricke that reasonable jurists would not find it 6 debatable that the instant petition should be dismissed without prejudice for lack of jurisdiction. 7 Dkt. No. 7 at 4. Accordingly, a certificate of appealability is not warranted. 8 III. CONCLUSION 9 For the foregoing reasons, it is hereby ORDERED that: 10 (1) The Court OVERRULES Mr. Garvie’s Objections, Dkt. No. 9, ADOPTS the Report 11 and Recommendation, Dkt. No. 7, and DISMISSES Mr. Garvie’s Petition for Writ of 12 Habeas Corpus, Dkt. No. 4-2, without prejudice to Mr. Garvie seeking authorization 13 from the court of appeals to file a successive habeas petition; 14 (2) A certificate of appealability is DENIED;

15 (3) The Court DENIES as moot Mr. Garvie’s motion to proceed IFP and his other motions, 16 Dkt. Nos. 1, 4-4, 4-5, 4-6, 4-10, 4-11, 8; and 17 (4) The Clerk is directed to send this Order to Judge Fricke and to Mr. Garvie; and to send 18 Mr. Garvie a copy of Ninth Circuit Rule 22-3 and the Ninth Circuit Court of Appeals 19 Form 12–Application for Leave to File Second or Successive Petition Under 28 U.S.C. 20 § 2254 or Motion Under 28 U.S.C. § 2255. 21 Dated this 11th day of March, 2025. 22 A 23 Lauren King United States District Judge 24