Garvie v. Bennett

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

13 THIS MATTER is before the Court on Magistrate Judge Grady J. Leupold’s Report and Recommendation (R&R), recommending the Court deny pro se petitioner Eugene Brian Garvie’s second or successive 28 U.S.C. § 2241 habeas petition, deny a 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 filed a request for a copy of the R&R, asserting that “on 7/19/2024, the ‘Electronic Copy Filed’ electronically (ECF) receipt was served, but not the Magistrate’s Report and Recommendation.” Dkt. 10 at 1 (boldface omitted). That same day, the Clerk’s office sent Garvie a copy of the R&R, and the Court renoted the R&R to August 9, 2024, to provide Garvie 14 additional days to object. Dkts. 10, 11. Garvie has not filed any objections to the R&R. 3 A district judge must determine de novo any part of a magistrate judge’s proposed disposition to which a party has properly objected. It must modify or set aside any portion of the order that is clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a). The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). A proper objection requires “specific written objections to the proposed 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 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).

Dkt. 9 at 5.

The R&R is ADOPTED. The petition is DENIED, the Court will not issue a Certificate of Appealability, and the case is DISMISED without prejudice.

The Clerk shall enter a JUDGMENT and close the case.

IT IS SO ORDERED. // 1 Dated this 9th day of August, 2024.

A BENJAMIN H. SETTLE United States District Judge