NOT FOR PUBLICATION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 t he 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 APPEALS2 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 conse nt to magistrate judge jurisdiction

. R eview ing de novo, see Wilhelm v. Rotman , 680 F.3d 1113, 1118 (9th Cir. 2012) , we disagree. Marquez

- Huazo acknowledges he signed a nd submitted a court form in which he consen ted to magistrate judge jurisdiction , which is
sufficien t. See id at 1119. Marquez

- Huazo’s claim that he did not understand the
document before he signed it is belied by the record.
Con trary to Marquez

- Huazo’s contention, respondent properly appeared in
the instant proceedings because the U.S. Department of Justice represent s 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 t he extent required, a certificate of appealability is granted with respect to whether the petition filed by Marquez

- Huazo in the district court wa s 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 criteri a)

. 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 i s 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 Su preme Court, that was previously unavailable.
28 U.S.C. § 2255(h).
AFFIRMED.