(HC) Marquez-Huazo v. Warden of FCI-Herlong ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GRACIANO MARQUEZ-HUAZO, No. 2:21-cv-1540 KJN P 12 Petitioner, 13 v. ORDER 14 WARDEN, 15 Respondent. 16 17 Petitioner is a federal prisoner, proceeding pro se. Both parties consented to proceed 18 before the undersigned for all purposes. See 28 U.S.C. § 636(c). On May 23, 2022, petitioner 19 filed a document entitled “Appeal to District Court Judge and Request for Certificate of 20 Appealability and Permission to File Successive § 2255 Motion.” (ECF No. 27.) 21 As discussed below, petitioner’s motion is denied. 22 Background 23 On September 9, 2021, petitioner filed a Consent/Decline of U.S. Magistrate Judge 24 Jurisdiction form, signing the section entitled “Consent to Jurisdiction of a United States 25 Magistrate Judge,” dating the section 9-6-21, and printing his name beneath his signature. (ECF 26 No. 4 at 1.) The accompanying certificate of service was also signed and dated by plaintiff. 27 (ECF No. 4 at 2.) 28 //// 1 On March 25, 2022, the undersigned recommended that respondent’s motion to dismiss be 2 granted. (ECF No. 17.) On April 18, 2022, petitioner filed objections. (ECF No. 18.) 3 On April 22, 2022, respondent filed a consent to the jurisdiction of a magistrate judge. 4 (ECF No. 21.) On April 26, 2022, the previously-assigned district judge issued a consent order 5 assigning the case to the undersigned. (ECF No. 22.) 6 On April 27, 2022, the undersigned reviewed petitioner’s objections, incorporated the 7 findings and recommendations by reference, and granted respondent’s motion to dismiss. (ECF 8 No. 23.) Judgment was entered the same day. (ECF No. 24.) 9 On May 4, 2022, petitioner filed a response to the order of reassignment, objecting that he 10 had not consented to the jurisdiction of a magistrate judge. (ECF No. 25.) On May 12, 2022, the 11 undersigned overruled petitioner’s objection, and provided petitioner with a copy of his signed 12 consent form. 13 On May 23, 2022, petitioner filed the instant motion. (ECF No. 27.) Meanwhile, on May 14 24, 2022, petitioner filed directly with the United States Court of Appeals for the Ninth Circuit 15 (“Ninth Circuit”) a notice of appeal of this court’s April 27, 2022 order denying his application 16 for a writ of habeas corpus under 28 U.S.C. § 2241. Marquez-Huazo v. Warden, FCI Herlong, 17 No. 22-15787 (9th Cir.). 18 Discussion 19 First, it appears petitioner seeks to appeal, to the previously-assigned district judge, the 20 May 12, 2022 order, specifically referencing ECF No. 26. (ECF No. 27.) However, a section 21 636(c)(1) referral “gives the magistrate judge full authority over dispositive motions, conduct of 22 trial, and entry of final judgment, all without district court review.” Roell v. Withrow, 538 U.S. 23 580, 585 (2003). As to appeals, section 636(c)(3) authorizes appeals from a magistrate judge’s 24 order to the court of appeals. Anderson v. Woodcreek Venture, Ltd., 351 F.3d 911, 913-14 (9th 25 Cir. 2003); Ashker v. Newsom, 968 F.3d 975, 981 (9th Cir. 2020). Because this case proceeds 26 before the undersigned pursuant to 28 U.S.C. § 636(c), petitioner may not seek reconsideration by 27 (or appeal to) the previously-assigned district judge. Rather, petitioner must appeal to the Ninth 28 //// 1 | Circuit. Therefore, the Clerk of the Court is directed to process petitioner’s notice of appeal (ECF 2 || No. 27) to the Ninth Circuit. 3 Second, a certificate of appealability is not required for an appeal from the denial of a 4 || petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2253; 5 || Harrison v. Ollison, 519 F.3d 952 (9th Cir. 2008). Therefore, petitioner’s motion for a certificate 6 || of appealability is denied as unnecessary. 7 Finally, if petitioner seeks permission to file a successive § 2255 motion, he must move in 8 | the Ninth Circuit for an order authorizing the appropriate district court to consider the application. 9 || “A second or successive motion must be certified as provided in section 2244 by a panel of the 10 || appropriate court of appeals.” 28 U.S.C. § 2255; see also 28 U.S.C. § 2244(b)(3). 1] Therefore, for all of the above reasons, petitioner’s motion is denied. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. The Clerk of the Court shall process petitioner’s notice of appeal (ECF No. 27) of the 14 || May 12, 2022 order (ECF No. 26) to the Ninth Circuit; and 15 2. Petitioner’s May 23, 2022 motion for certificate of appealability (ECF No. 27) is 16 | denied. 17 | Dated: June 17, 2022 i Aectl Aharon 19 KENDALL J. NE /marq1540.den UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28