Dante Lizalde v. William Barr, No. 5:2019cv02480 - Document 54 (C.D. Cal. 2020)
Court Description: ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE 45 by Judge Mark C. Scarsi. IT THEREFORE IS ORDERED that Respondent's motion to dismiss is GRANTED and judgment be entered dismissing this action. (es)
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Dante Lizalde v. William Barr Doc. 54 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 DANTE LIZALDE, 10 Petitioner, 11 v. 12 13 U.S. ATTORNEY GENERAL WILLIAM BARR, 14 15 Respondent. ) Case No. EDCV 19-2480-MCS (JPR) ) ) ) ) ORDER ACCEPTING FINDINGS AND ) RECOMMENDATIONS OF U.S. ) MAGISTRATE JUDGE ) ) ) The Court has reviewed the Petition and Supplemental 16 Petition, records on file, and Report and Recommendation of U.S. 17 Magistrate Judge, which recommends that Respondent’s motion to 18 dismiss be granted and judgment be entered dismissing this 19 action. On September 9, 2020, Petitioner filed Objections to the 20 R. & R., in which he mostly simply repeats arguments from his 21 opposition to Respondent’s motion and his other filings. 22 September 23, Respondent filed a reply.1 On 23 24 25 26 27 28 1 That same day, Respondent filed notice that Petitioner was removed from the United States on August 27, 2020, arguing that the Petition and Supplemental Petition are therefore moot. But Petitioner doesn’t just “request release[] from immigration custody based on the length of his detention” (Notice at 2); as the Magistrate Judge noted, he also challenges the aggravatedfelony convictions underlying his removal order (see R. & R. at 4-5). Moreover, the Court is unclear how Petitioner could have mailed his objections from a business center in San Diego on September 8 given his August 27 removal. (See Objs. at 88.) In (continued...) Dockets.Justia.com 1 Petitioner claims that the Magistrate Judge didn’t have 2 jurisdiction to issue the R. & R. because pending in the Ninth 3 Circuit is his appeal of her characterization of his March 24, 4 2020 habeas petition as a supplement to his initial December 26, 5 2019 Petition. 6 (See Objs. 2-7.) That argument is unavailing. After Petitioner filed the Petition, he purported to file a 7 second habeas petition, claiming that his original Petition 8 concerned only his “actual innocence” and alleging that his new 9 petition related to his “immigration case.” Because he 10 acknowledged that the new filing relied on essentially the same 11 factual allegations as the initial Petition and both petitions 12 attacked the validity of the convictions underlying his removal 13 order, the Magistrate Judge properly exercised her discretion to 14 construe the second filing as a Supplemental Petition. (See R. & 15 R. at 1-2.) 16 On April 14, 2020, Petitioner moved for a temporary 17 restraining order, seeking release from detention based on the 18 COVID-19 pandemic. In that motion, he also objected to the 19 Magistrate Judge’s characterization of his March 24, 2020 habeas 20 petition as a Supplemental Petition. 21 at 2-6.) (See Emergency Inj. for TRO On April 17, 2020, the Court referred that motion to 22 the Honorable Terry J. Hatter Jr., to whom Petitioner’s separate 23 habeas petition challenging his continued detention during the 24 pandemic was assigned. Judge Hatter denied the TRO request that 25 same day without expressly considering Petitioner’s objections to 26 the Magistrate Judge’s characterization of the Supplemental 27 28 1 (...continued) any event, the petitions are not moot. 2 1 Petition. (See Order Denying TRO, ECF No. 34.) On May 8, 2020, 2 Petitioner appealed Judge Hatter’s April 17 denial of his TRO as 3 well as his denial of another TRO earlier that month. 4 Notice of Appeal, ECF No. 38.) (See But the appeal necessarily 5 pertains only to Judge Hatter’s denials of the TROs. The Ninth 6 Circuit lacks jurisdiction to consider an interlocutory appeal 7 from a simple case-management decision, which is what the 8 Magistrate Judge’s characterization of Petitioner’s second 9 petition as “supplemental” was. See Van Dusen v. Swift Transp. 10 Co., 830 F.3d 893, 896–97 (9th Cir. 2016) (holding that it did 11 not have jurisdiction over interlocutory appeal from scheduling 12 and case-management order because it wasn’t “a full adjudication 13 of the issues” and didn’t “resolve important questions separate 14 from the merits” (citations omitted)). 15 Thus, Petitioner’s appeal didn’t deprive the Magistrate 16 Judge of jurisdiction to issue the R. & R. To the extent he 17 contends the Magistrate Judge shouldn’t have characterized his 18 second habeas petition as a Supplemental Petition, he doesn’t 19 identify how he was prejudiced by her doing so. The Magistrate 20 Judge correctly recognized that the two petitions were based on 21 similar facts and arguments and prudently considered them 22 together to preserve judicial resources. Moreover, in doing so, 23 she considered his claim of actual innocence (see R. & R. at 5-7) 24 as well as his immigration-related arguments (see id. at 7-15), 25 covering all the issues raised in both petitions. 26 Petitioner also asserts that the Magistrate Judge didn’t 27 have jurisdiction to issue the R. & R. because his removal 28 proceedings were based on a “fundamentally defective verdict.” 3 1 (Objs. at 7; see id. at 7-9.) But as the Magistrate Judge 2 correctly found, Petitioner’s challenges to his underlying 3 convictions are impermissibly second or successive and can’t be 4 considered here. 5 (See R. & R. at 5-7.) IT THEREFORE IS ORDERED that Respondent’s motion to dismiss 6 is GRANTED and judgment be entered dismissing this action. 7 8 9 DATED: 10 Qevqdgt"8."4242 MARK C. SCARSI U.S. DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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