Javier Flores Gaytan v. Michael Hardee

Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JAVIER FLORES GAYTAN, ) ) Petitioner, ) ) v. ) 1:17CV979 ) ) MICHAEL HARDEE, ) ) ) Respondent. )

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

In 2017, Javier Flores Gaytan wire recording for the jury. Docket (“Gaytan”), a prisoner of the State of Entry 1 at 11-32. North Carolina serving a lengthy sentence for trafficking cocaine, This Court denied the Petition as brought this action through counsel time-barred and entered judgment in seeking a writ of habeas corpus 2018. Docket Entries 12, 15, and 16. pursuant to 28 U.S.C. § 2254. Docket Gaytan’s appeal was unsuccessful as Entry 1. In his Petition Gaytan was his effort to seek review with the contended: (1) that he was denied Supreme Court. Docket Entries 20- federal due process because the 24. Now, years after the entry of “presentation of [Officer] Monge’s judgment, Gaytan—represented by wire translation to the jury violated different counsel—has filed a “Motion [his] due process rights,” and the state To Reopen Habeas Corpus Petition focused on Officer Monge’s wire and For Leave to Allow Supplement to transcription in its closing arguments; Petitioner’s Former Habeas Petition.” (2) Officer Monge’s testimony about Docket Entry 28 at 1. He now seeks to the wire recording deprived Gaytan of raise a new claim or claims asserting a his state constitutional rights; and (3) violation of the Confrontation Clause trial counsel was ineffective for failing and relatedly of his right to effective to object on due process grounds to assistance of counsel. Docket Entries Officer Monge’s interpretation of the 28-29. As set forth below, the wire recording, failing to request that undersigned recommends dismissing the wire recording be played for the Gaytan’s motion for lack of jury, and failing to request that a jurisdiction. disinterested interpreter translate the More specifically, Gaytan requests second or successive habeas petition. that this matter be re-opened See Bixby, 90 F.4th at 150-51. But the pursuant to the Fifth, Sixth, and Court may not consider a second or Fourteenth Amendments to the successive habeas petition under United States Constitution, 28 U.S.C. § 2254 unless Gaytan receives § 2254, and principles of basic prefiling authorization from _ the fairness. Docket Entry 28 at 1; Docket appropriate court of appeals. See 28 Entry 29 at 1. However, there is no U.S.C. § 2244(b)(3); Bixby, 90 F.4th precedent that supports reopening at 155 (“Given that Bixby’s motion the matter under these authorities. actually sought permission to raise new and revised claims in a second or Nor would a more liberal construction successive § 2254 petition, § 2244 and of Gaytan’s pleadings assist him. It is our case law reflect that the district true that under limited circumstances court should have dismissed . . . the a petitioner may seek reconsideration motion.”). Gaytan does not assert that of a judgment via a Rule 60(b) he has sought, much less received, motion. See Fed. R. Civ. P. 60(b). But permission from the Fourth Circuit to Gaytan, who is_ represented by file a second or successive habeas counsel, does not mention Rule 60(b), petition. Consequently, the Court nor should the Court construe the lacks jurisdiction over the instant motion as such because Gaytan motion. It should be dismissed. attacks his convictions. He does not seek to remedy a defect in the IT IS THEREFORE collateral review process or other RECOMMENDED that Gaytan’s non-merit aspect of the ruling on motion, Docket Entry 28, be collateral review. See Gonzalez uv. construed as an attempt to file a Crosby, 545 U.S. 524, 532-34 (2005); second or successive § 2254 action. Bixby v. Stirling, 90 F.4th 140, 148 (4th Cir. 2024); United States v. IT IS FURTHER McRae, 793 F.3d 392, 397 (4th Cir. RECOMMENDED that this action 2015); United States v. Winestock, be dismissed due to Gaytan’s failure 340 F.3d 200, 208 (4th Cir. 2003). to obtain certification from the Fourth Circuit as required by 28 U.S.C. Because Gaytan is attempting to raise §§ 2244 and 2255 and Fourth Circuit new legal and factual arguments Local Rule 22(d). attacking his convictions, his motion is more properly characterized as a A | My — JoAnna Gibson McFadden June 24, 2026 United States Magistrate Judge