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Favor v. Wimfroy

United States District Court, E.D. California

July 17, 2017

BRANDON FAVOR, Petitioner,
v.
SHARON WIMFROY, et al., Respondents.

          ORDER REQUIRING PETITIONER TO SHOW CAUSE WHY PETITIONER SHOULD NOT BE DECLARED A VEXATIOUS LITIGANT [TEN-DAY DEADLINE]

          JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE

         BACKGROUND

         Petitioner Brandon Alexander Favor (aka Brandon Favor-El) is currently incarcerated at California Correctional Institution in Tehachapi, California. He has filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         On July 30, 2008, a jury convicted Petitioner of one count of first degree murder, two counts of attempted murder, and two counts of second degree robbery. On April 7, 2009, the Los Angeles County Superior Court sentenced him to an indeterminate term of life without the possibility of parole on the murder count and consecutive life terms on the two counts of attempted murder.

         Favor is well known to this Court. Since 2013, Favor has filed at least twenty-seven habeas petitions and thirteen § 1983 complaints in the Eastern District of California, as well as numerous additional petitions and complaints in the Central and Southern Districts of California. For reasons discussed below, these petitions have been dismissed or transferred. In addition, he has attempted to file countless other pleadings which were rejected by the Court and returned to him for clear deficiencies rendering them ineligible to be filed.

         Petitioner has been declared a vexatious litigant in the Central District of California. See Favor v. Harper, 2017 WL 132830 (C.D. Cal. Jan. 13, 2017). For reasons discussed below, the Court ORDERS Petitioner to show cause why he should not be declared a vexatious litigant in this district as well.

         DISCUSSION

         A . Preliminary Review of Petition

         Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. The Advisory Committee Notes to Rule 8 of the Rules Governing Section 2254 Cases indicates that the Court may dismiss a petition for writ of habeas corpus on its own motion under Rule 4. However, a petition for writ of habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

         B. Problems with Dismissed and Pending Habeas Corpus Petitions

         All of Favor's previous federal habeas corpus petitions that this Court has reviewed suffer from numerous procedural and substantive problems which make them subject to dismissal. This petition is no different.

         Of the petitions and complaints Petitioner has filed, all of them are incoherent, vague, rambling, and conclusory. Some of them are unsigned. A petition for writ of habeas corpus must specify the grounds for relief; state facts supporting each ground; state the relief requested; be printed, typewritten, or legibly handwritten; and be signed under penalty of perjury. See Rule 2(c) of the Rules Governing Section 2254 Cases. The petition must be on the form approved by the Court or must substantially follow the form. See Rule 2(d) of the Rules Governing Section 2254 Cases. The petition must make specific factual allegations that would entitle the petitioner to relief if they are true. O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). Summary dismissal is appropriate if the allegations in the petition are vague, conclusory, palpably incredible, or patently frivolous or false. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

         All of the petitions fail to state cognizable claims for relief under federal law. Title 28 U.S.C. § 2241(c) provides that habeas corpus shall not extend to a prisoner unless he is “in custody in violation of the Constitution.” Title 28 U.S.C. § 2254(a) states, “[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to a judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” To succeed in a petition pursuant to § 2254, a petitioner must demonstrate that the adjudication of his claim in state court “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). None of the petitions allege a violation of the Constitution or federal law, or argue that the petitioner is in custody in violation of the Constitution or federal law. While there is mention of due process and innocence, no actual, cognizable claims are presented. None of the petitions show how the adjudication of the claims in state court “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, . . . or resulted in a decision that was based on an unreasonable determination of the facts . . . .” 28 U.S.C. § 2254.

         Many of the petitions do not name a proper respondent. Pursuant to Rule 2(a) of the Rules Governing Section 2254 Cases, if the petitioner is in custody under a state court judgment, he must name as respondent the state officer who has custody. See also Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th ...


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