Case No. 2:19-cv-07357-TJH-MAA
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other records on file herein, and the Report and Recommendation of the United States Magistrate Judge ("R&R," ECF No. 21).
The Court also has reviewed Petitioner's objections to the Report and Recommendation, which the Court received and filed on January 2, 2020. ("Objections," ECF No. 22.) As required by Federal Rule of Civil Procedure 72(b)(3), the Court has engaged in de novo review of the portions of the R&R to which Petitioner specifically has objected.
Petitioner contends that he does not need authorization from the Ninth Circuit to file the instant Petition because this Court may reopen his 2003 habeas case, Bowell v. Lamarque, No. 2:03-cv-01459-TJH-SH, pursuant to a recent United States Supreme Court case. (Objections at 1-2.) The Court declines to consider this argument, which Petitioner first raised in his Objections. See United States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000). Petitioner has not filed a motion to reopen the 2003 case or a motion for relief from the judgment in that case. In any event, Petitioner previously has been advised that he must show, within a reasonable time after entry of judgment, extraordinary circumstances to justify the extraordinary relief of reopening of a final judgment. E.g., Order Denying Motion for Relief from Judgment 3, Bowell v. Lamarque, No. 2:03-cv-01459-TJH-SH (C.D. Cal. July 25, 2012), ECF No. 81 (citing Fed. R. Civ. P. 60 and Gonzales v. Crosby, 545 U.S. 524, 535 (2005)).
Petitioner also reiterates arguments regarding the merits of his claims and provides reasons why the Court should consider the Petition in light of new case law. (See Objections at 1-4.) This Court is divested from jurisdiction to entertain these arguments unless and until the Ninth Circuit gives Petitioner leave to file a second or successive petition. Burton v. Stewart, 549 U.S. 147, 153 (2007).
The Court finds no defect of law, fact, or logic in the R&R. The Court concurs with and accepts the findings, conclusions, and recommendations of the United States Magistrate Judge, and overrules the Objections.
IT THEREFORE IS ORDERED that (1) the Report and Recommendation of the Magistrate Judge is accepted and adopted; (2) Respondent's Motion to Dismiss (ECF No. 15) is granted; (3) Petitioner's "Motion[s] to Incorporate" (ECF No. 19) are denied as moot; and (4) Judgment shall be entered denying the Petition and dismissing this action without prejudice. DATED: February 10, 2020
TERRY J. HATTER JR.
UNITED STATES DISTRICT JUDGE