Garvie v. Bennett

HONORABLE RICHARD A. JONES

10 UNITED STATES DISTRICT COURT 11 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 13 EUGENE BRIAN GARVIE, NO. 2:24-cv-00232-RAJ 14 Petitioner, 15 ORDER JASON BENNETT 17 Respondent.

This matter is before the Court on several motions filed by pro se prisoner petitioner Eugene Garvie, including motions seeking relief from judgment, Dkt. ## 20, 21, 23, 25, 26, 27, 28, two motions seeking an order requiring Respondent and the Snohomish County Clerk to produce the Clerk’s file and other documents, Dkt. ## 30, 31, and a motion seeking an order that Respondent must answer the Petition. Dkt. # 32.

Further, Petitioner has filed a motion requesting that a magistrate judge “assist this Court in the conduct of discovery proceedings,” Dkt. # 33, and a motion to appoint counsel.

Dkt. # 34.

1 On March 4, 2024, Petitioner filed his petition for writ of habeas corpus. Dkt. # 6.

2 On April 17, 2024, this Court entered an order adopting the Report and Recommendation of the Honorable Brian A. Tsuchida, dismissing this matter with prejudice and denying a Certificate of Appealability. Dkt. # 14, 15. This Court found that the Petition, which challenged Petitioner’s 2007 Snohomish County criminal conviction, was time barred by the statute of limitations and was a second or successive request for habeas relief from his state court judgment and sentence. Dkt. # 8 at 7. This Court noted that Petitioner previously brought an unsuccessful challenge to his judgment and conviction in Garvie v. State of Washington, 2:18-cv-01371-JLR1. Id. After this Court dismissed the Petition with prejudice, Petitioner filed a Notice of Appeal to the Ninth Circuit Court of Appeals.

11 Dkt. #16. The Ninth Circuit assigned Petitioner’s appeal a case number, and on May 9, 2024 noted that a Certificate of Appealability had been denied by the district court in April. See Garvie v. Bennett, No. 24-2965, ECF No. 2. The Ninth Circuit stated that no briefing schedule would be set until the appeals court or the district court determines whether a Certificate of Appealability should issue. Id. 16 Plaintiff then filed seven substantially similar motions seeking relief from judgment. Dkt. ## 20, 21, 23, 25, 26, 27, 28. Petitioner brings these motions under Federal Rule of Civil Procedure 60(b)(4), arguing that the judgment is void. Id. Petitioner argues, alternatively, that this Court violated the Magistrate Act and Habeas Rule 8(b) by asserting a procedural defense not made by respondent, and that this Court failed to conduct de novo review of the Request for Certification. Id. Petitioner also appears to seek reconsideration of the denial of a Certificate of Appealability to avoid a dilatory remand. Id. Petitioner’s motions do not address the substance or reasoning of the Report & Recommendation or the standard for reconsideration. Further, Petitioner fails to show 26 1 In that matter, Petitioner filed an appeal, and the Ninth Circuit denied Petitioner’s request for a Certificate of Appealability and dismissed the matter. 2:18-cv-01371-JLR, ECF.

27 No. 18.

1 that the judgment is void because this Court lacked subject matter jurisdiction, lacked jurisdiction over the parties, or acted in a matter inconsistent with due process that deprived a party of notice or the opportunity to be heard. United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270 (2010). And in any event, it is clear that Petitioner’s habeas petition is time barred and a second or successive petition.

6 The Court’s judgment is not void, and Petitioner is not entitled to a Certificate of Appealability, because he has not demonstrated that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

11 Therefore, Plaintiff’s Motions for Relief from Judgment, Dkt. ## 20, 21, 23, 25, 26, 27, 28, are DENIED. Petitioner’s remaining Motions, Dkt. # 30, 31, 32, 33, 34, are DENIED as moot.

DATED this 22nd day of August, 2024.

16 A 18 The Honorable Richard A. Jones 19 United States District Judge