NOT FOR PUBLICATION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
2 22-15787 

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).
3 22-15787 

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. MarquezHuazo’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.