Graciano Marquez-Huazo v. Warden

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT GRACIANO MARQUEZ-HUAZO, No. 22-15787 Petitioner-Appellant, D.C. No. 2:21-cv-01540-KJN v. MEMORANDUM* WARDEN, FCI-Herlong, Respondent-Appellee. Appeal from the United States District Court for the Eastern District of California Kendall J. Newman, Magistrate Judge, Presiding** Submitted February 14, 2023** Before: FERNANDEZ, FRIEDLAND, and H.A. THOMAS, Circuit Judges. Federal prisoner Graciano Marquez-Huazo appeals pro se from the district court’s judgment dismissing his 28 U.S.C. § 2241 habeas petition. We have * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** As discussed further in this disposition, we determine that the parties consented to proceed before a magistrate judge. *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). jurisdiction under 28 U.S.C. § 1291, and we affirm.1 Marquez-Huazo first argues that his petition should be remanded for consideration by a district judge because he did not consent to magistrate judge jurisdiction. Reviewing de novo, see Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012), we disagree. Marquez-Huazo acknowledges he signed and submitted a court form in which he consented to magistrate judge jurisdiction, which is sufficient. See id at 1119. Marquez-Huazo’s claim that he did not understand the document before he signed it is belied by the record. Contrary to Marquez-Huazo’s contention, respondent properly appeared in the instant proceedings because the U.S. Department of Justice represents the Bureau of Prisons and its officials in litigation. See 28 U.S.C. § 516. Marquez-Huazo next contends that the district court erred in determining he did not meet the “escape hatch” of 28 U.S.C. § 2255. Reviewing de novo, see Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008), the district court did not err. As it found, Marquez-Huazo had “an unobstructed procedural shot at presenting” his challenges to the drug quantity used to calculate his sentence and the sufficiency of the evidence underlying his 18 U.S.C. § 924(c) conviction. See 1 To the extent required, a certificate of appealability is granted with respect to whether the petition filed by Marquez-Huazo in the district court was a legitimate § 2241 petition brought pursuant to the escape hatch of 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(3); see also 9th Cir. R. 22-1(e). 2 22-15787 Harrison, 519 F.3d at 959 (discussing escape hatch criteria). Marquez-Huazo presented the same claims in his direct criminal appeal, see United States v. Marquez-Huazo, 337 F. App’x 652, 653 (9th Cir. 2009), and he has not shown that the applicable law materially changed after his direct appeal and first § 2255 motion were decided, see Harrison, 519 F.3d at 960. Because Marquez-Huazo cannot meet the “unobstructed procedural shot” requirement, we need not address whether he can show actual innocence. See Muth v. Fondren, 676 F.3d 815, 819 (9th Cir. 2012) (stating that both escape hatch requirements must be satisfied). We do not address Marquez-Huazo’s remaining arguments because they were not properly raised in the district court. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). Marquez-Huazo’s motion for appointment of counsel is denied. Marquez- Huazo’s motion to file a second or successive § 2255 motion is denied because he has not demonstrated: (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. 28 U.S.C. § 2255(h). AFFIRMED. 3 22-15787