United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION AT
SCREENING ECF NO. 1 ORDER DENYING PETITIONER'S MOTION FOR
EXTENSION OF TIME ECF NO. 7 ORDER DENYING PETITIONER'S
MOTION TO EXCLUDE EVIDENCE ECF NO. 8
Brandon Alexander Favor, a state prisoner without counsel,
seeks a writ of habeas corpus under 28 U.S.C. § 2241.
Petitioner seeks relief from a “parole problem.”
ECF No. 1. Petitioner lists ineffective assistance of counsel
and a violation of his Miranda rights as grounds for
relief. Id. at 3. Petitioner has more recently moved
for a 40-day extension of time to file evidence, ECF No. 7 at
1-2, and to exclude evidence, ECF No. 8.
matter is before the court for preliminary review under Rule
4 of the Rules Governing Section 2254 Cases. Under Rule 4,
the judge assigned to a habeas proceeding must examine the
petition and order a response unless it “plainly
appears” that the petitioner is not entitled to relief.
See Valdez v. Montgomery, 918 F.3d 687, 693 (9th
Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127
(9th Cir. 1998). I recommend that the court dismiss the
petition for failure to obey this court's previous
vexatious litigant order and for failing to comply with 28
U.S.C. § 2254 filing requirements. I deny the pending
has filed at least 27 previous petitions for habeas relief in
this district alone.In his most recently closed habeas case,
petitioner was deemed a vexatious litigant. See Favor v.
Anderson, Case No. 1:17-cv-00944-AWI-JLT (E.D. Cal.
2017) at ECF No. 11 at 4. The court “repeatedly
counseled petitioner on the proper requirements for filing a
federal habeas petition.” Id. at ECF No. 10 at
7. Petitioner's cases “have been dismissed or
transferred . . . and they continue to be dismissed or
transferred.” Id. Petitioner ignored the
court's orders and “continued to file frivolous
petitions subject to dismissal, or submit random, frivolous
was ordered to undertake several steps when filing any
subsequent habeas petitions in this district. Id. at
3-4. Petitioner was ordered to “include with the
petition a copy of th[e] Vexatious Litigant Order; . . .
[u]se the proper form for a habeas corpus action; . . .
clearly and concisely specify the grounds for relief and
facts supporting each ground; . . . [p]rove that [p]etitioner
has exhausted his state court remedies by having presented
the petition's claims to the California Supreme Court in
a procedurally proper form, and prove that his direct appeal
concerning the conviction being challenged has been ruled on
by the California Court of Appeal.” Id. The
order noted that the court will screen all new petitions for
these requirements. Id. at 4. Petitioner may file a
new petition only if these requirements are satisfied, and
deficient petitions will be rejected. Id. Here,
petitioner has run afoul of these and other requirements.
petitioner did not include a copy of the vexatious litigant
order with his instant petition. A copy of the order serves
an important purpose: efficient treatment of judicial
petitioner filed using a § 2241 form. State petitioners
may not seek relief under § 2241 if relief is available
under 28 U.S.C. § 2254. See Greenawalt v.
Stewart, 105 F.3d 1287, 1287-88 (9th Cir. 1997) (per
curiam). In general, a state prisoner challenging the
legality of his conviction or sentence must file under §
2254. See McNeely v. Blanas, 336 F.3d 822, 824 n.1
(9th Cir. 2003); Dixon v. Baker, 847 F.3d 714, 718
(9th Cir. 2017) (“A prisoner in state custody may seek
to remedy a violation of his federal constitutional rights by
petitioning for a writ of habeas corpus in federal court
[pursuant to § 2254].”). In contrast, § 2241
petitions are proper when challenging the manner of execution
of a sentence. See United States v. Giddings, 740
F.2d 770, 772 (9th Cir. 1984) (“Review of the execution
of a sentence may be had through petition for a writ of
habeas corpus under 28 U.S.C. § 2241.”).
Petitioner may not file a § 2241 petition to circumvent
the rules of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), such as the prohibition on
second or successive petitions and the statute of limitations
for filing a petition.
petitioner indicated that the petition challenges “a
parole problem.” ECF No. 1 at 1. However, petitioner
claimed ineffective assistance of counsel at his state trial
and wrongful waiver of Miranda rights during the
investigation of his state criminal case as grounds for
relief. Id. at 3. Petitioner did not describe his
parole problems; nor did he provide any supporting evidence
of the parole problems. Instead, petitioner claims violations
of his constitutional rights. Because § 2254 is the
proper avenue to raise constitutional challenges to a state
conviction, petitioner may not file under § 2241. If
petitioner seeks relief under § 2254 in the future, he
must show how his petition meets the filing requirements of
AEDPA, including Ninth Circuit advance approval to file a
second or successive petition and his ability to meet the
statute of limitations requirements.
petitioner failed to clearly and concisely specify the
grounds for relief and the facts supporting each ground.
Petitioner simply indicated that he sought relief from a
“parole problem” and claimed ineffective
assistance of counsel and a Miranda violation as his
grounds. Without more information linking his claims to the
relief sought, no relief can be granted. Such short and
conclusory statements fail to state a claim upon which relief
may be granted and are properly dismissed at screening.
See Ross v. Williams, 896 F.3d 958, 968 (9th Cir.
2018) (citation omitted).
petitioner has not supplied this court with proof that his
instant claims have been exhausted before the California
Supreme Court or that his conviction has been appealed to the
California Court of Appeal. ECF No. 1 at 3-4.
petitioner moved for a 40-day extension of time to file
evidence, ECF No. 7 at 1-2, and moved to exclude evidence,
ECF No. 8. Both motions are largely illegible, and I am
unable to determine the specific relief petitioner seeks.
Both motions are denied at this time. If petitioner
successfully complies with the vexatious litigant order, he
may make these motions legible and refile them.
motion for an extension of time, ECF No. 7, and motion to
exclude evidence, ECF No. 8, are dismissed.