Graciano Marquez-Huazo v. WARDEN, FCI-Herlong

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GRACIANO MARQUEZ-HUAZO,
Petitioner-Appellant,
v.
WARDEN, FCI-Herlong,
Respondent-Appellee.
No. 22-15787
D.C. No. 2:21-cv-01540-KJN
MEMORANDUM*
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).
FILED
FEB 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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).

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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.

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