1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BRANDON LEON BIBBS, Case No. 2:23-cv-02022-SPG-JPR Petitioner, ORDER ACCEPTING FINDINGS AND 12 v. RECOMMENDATIONS OF UNITED 13 STATES MAGISTRATE JUDGE

F. GUZMAN,

14 Respondent. 15 16 17 I. INTRODUCTION 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed Petitioner Brandon Leon 19 Bibbs’s (“Petitioner”) Petition for Writ of Habeas Corpus by a Person in State Custody, 20 (ECF No. 1 (“Petition”)); the records on file; Petitioner’s Motion for Relief to Vacate 21 Judgment of Dismissal (Rule 60(b)), (ECF No. 22 (“Motion”)); the Report and 22 Recommendation of the United States Magistrate Judge (ECF No. 26-1 (“Report” or 23 “R. & R.”)); and Petitioner’s objections to the Report, (ECF No. 27 (“Objections”)). 24 Further, the Court has made a de novo determination of the portions of the Report to which 25 Petitioner objected. 26 The Report recommends denial of the Motion, which seeks relief under Federal Rule 27 of Civil Procedure 60(b) from the Judgment in this case dismissing the Petition without 28 prejudice as an unauthorized successive habeas petition, (ECF No. 20). Rule 60(b) 1 “permits litigants to request reconsideration of a final judgment, order, or proceeding 2 entered against them.” Bynoe v. Baca, 966 F.3d 972, 979 (9th Cir. 2020). “The Rule lists 3 five circumstances that may justify reopening a final judgment—including, for example, 4 newly discovered evidence, fraud by the opposing party, or a mistake committed by the 5 court—and a sixth, catch-all category.” Id. Here, Petitioner appears to seek relief under 6 Rule 60(b)(1), which permits relief in the event of “mistake.” See (R. & R. at 1–2). For 7 the following reasons, Petitioner’s Objections do not warrant a change to the Report’s 8 findings or recommendations. 9 II. DISCUSSION 10 Petitioner contends that the Court erred by concluding his Petition was successive. 11 (Mot. at 2). He also argues that the Court erroneously “omitted the facts of the 12 demonstrated exhaustion of remedies in the state courts.” (Id.). The Report concludes that 13 “Petitioner’s arguments concerning exhaustion are irrelevant” because, regardless of 14 whether Petitioner exhausted his claims, he did not include or seek to include them in his 15 first petition, rendering the instant Petition successive. (R. & R. at 2). Petitioner objects 16 that the Report “cite[d] no lawful authority” in determining whether his claim was second 17 or successive. (Objs. at 1–2). To the contrary, however, the Report cited to legal authority 18 in its explanation of why the instant Petition is impermissibly successive. (R. & R. at 2). 19 See also (ECF No. 15 (“Prior Report” or “Prior R. & R.”) at 4–8). And, as explained in 20 the Prior Report, see (id. at 7), Petitioner’s exhaustion of state court remedies “is irrelevant 21 to whether he may bring a second and successive federal habeas petition” because he must 22 follow federal “procedural requirements before filing a second or successive habeas 23 petition in federal court,” Morales v. Ducart, No. CV 17-2767-AG (SP), 2018 WL 24 3239834, at *3 (C.D. Cal. Feb. 28, 2018), report and recommendation adopted, No. CV 25 17-2767-AG (SP), 2018 WL 3239832 (C.D. Cal. June 29, 2018). 26 Petitioner also contends he is entitled to relief under Rule 60 because the Court erred 27 when it concluded “it lack[ed] authority to apply a miscarriage of justice exception” 28 because the Petition was successive and unauthorized. (Mot. at 4). The Report reiterates 1 || the Court’s prior conclusion that “it is powerless to act on his Petition without authorization 2 the Ninth Circuit” and further explains that Petitioner’s remedy is to “simply . . . ask 3 court of appeals, not this Court, to let them go forward.” (R. & R. at 3). The Report 4 ||also notes that “Petitioner never really identifies just what ‘miscarriage of justice’ would 5 result from his claims not being considered” but that, without more, actual innocence would 6 be enough. (/d.). Petitioner objects that the Report misstated his claims for a 7 || miscarriage of justice exception. (Objs. at 2-3). But Petitioner does not object to the 8 || Report’s primary conclusion, which is that the Court does not have the authority to apply 9 miscarriage of justice exception. As the Court has previously stated, see (ECF No. 19 10 2), because Petitioner filed an unauthorized successive Petition, the Court “lack[s] 11 jurisdiction to consider the merits of his petition,” Cooper v. Calderon, 274 F.3d 1270, 12 1274 (9th Cir. 2001). Plaintiff has not and cannot demonstrate any error to this conclusion. 13 In sum, Petitioner’s objections are OVERRULED. 14 CONCLUSION 15 For the foregoing reasons, the Court (1) accepts and adopts the Report and 16 || Recommendation; (2) denies Petitioner’s Motion; and (3) directs the Clerk to serve this 17 || Order on all counsel or parties of record. 18 IT IS SO ORDERED. 19 20 DATED: August 20, 2024 21 ~ HON. SHERILYN PEACE GARNETT 2 UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28