Favor-El v. Rome

Filing 5

ORDER DISMISSING Petition as Second or Successive, signed by District Judge Dale A. Drozd on 12/2/16. (CASE CLOSED)(Hellings, J)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11
12

BRANDON FAVOR, aka BRANDON
FAVOR-EL,
Petitioner,

13

ORDER DISMISSING PETITION AS
SECOND OR SUCCESSIVE

v.

14
15

No. 1:16-cv-01808-DAD-SKO

MICHELLE ROME,
Respondent.

16
17

Petitioner, Brandon Favor is a state prisoner proceeding pro se with a petition for writ of

18
19

habeas corpus pursuant to 28 U.S.C. § 2254. The petition in the above-captioned case attempts to

20

assert the same claim petitioner previously alleged in Favor v. Vasquez, No. 1:16-cv-01444-

21

SKO.1 That earlier filed petition was dismissed as a second or successive petition filed without

22

leave of the United States Court of Appeals for the Ninth Circuit on October 25, 2016.

23

Accordingly, the court also dismisses this petition.
PRELIMINARY SCREENING

24

Rule 4 of the Rules Governing § 2254 Cases requires the court to conduct a preliminary

25
26

review of each petition for writ of habeas corpus. The court must dismiss a petition “[i]f it plainly

27
28

1

Favor v. Vasquez was originally filed as Favor v. Romg [sic].
1

1

appears from the petition . . . that the petitioner is not entitled to relief.” Rule 4 of the Rules

2

Governing Section 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

3

A petition for habeas corpus should not be dismissed without leave to amend unless it appears

4

that no tenable claim for relief can be pleaded were such leave to be granted. Jarvis v. Nelson,

5

440 F.2d 13, 14 (9th Cir. 1971).

6

PETITION IS SUCCESSIVE

7

Petitioner has filed multiple prior petitions for writ of habeas corpus in this district and in

8

the Central District of California. Many of these petitions seek to set aside petitioner’s 2008

9

criminal convictions based on unsupported allegations made by petitioner concerning various

10

individuals, including Michelle Rome,2 who is named as respondent in this action. In the petition

11

pending before the court in this case, petitioner attempts to attack that same 2008 conviction and

12

characterizes his claim as being for “non-statutory relief.” (Doc. No. 1 at 2.)

13

A district court must dismiss any claim presented in a second or successive § 2254

14

petition that was presented in a prior application. 28 U.S.C. § 2244(b)(1). In addition, a district

15

court must dismiss any claim presented in a second or successive § 2254 petition unless the

16

applicant shows that “the claim relies on a new rule of constitutional law, made retroactive to

17

cases on collateral review by the Supreme Court, that was previously unavailable” or (2) the

18

factual predicate for the claim could not have been discovered previously with due diligence and

19

the facts underlying the claim, if proven and reviewed in light of the evidence as a whole, would

20

be sufficient to establish by clear and convincing evidence that no reasonable factfinder would

21

have found petitioner guilty of the underlying offense, 28 U.S.C. § 2244(b)(2).

22

The circuit court of appeals, not the district court, must decide whether a second or

23

successive petition satisfies the statutory requirements to proceed. 28 U.S.C. §2244(b)(3)(A)

24

(“Before a second or successive petition permitted by this section is filed in the district court, the

25

applicant shall move in the appropriate court of appeals for an order authorizing the district court

26
27
28

2

Petitioner has referred to Ms. Rome is various ways including Mychelle Romg, Michelle
Romg, and Mychelle Rome. Context suggests that all of these similar names used by petitioner
are intended to refer to the same individual.
2

1

to consider the application”). This means that a petitioner may not file a second or successive

2

petition in district court until he has obtained leave from the court of appeals. Felker v. Turpin,

3

518 U.S. 651, 656–57 (1996). In the absence of an order from the appropriate circuit court, a

4

district court lacks jurisdiction over the petition and must dismiss the second or successive

5

petition. Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997).

6
7

Petitioner has not obtained leave to file the above-captioned petition from the circuit
court. As a result, this court must dismiss the petition.

8
9
10

CONCLUSION
For the reasons set forth above,
1. The petition for writ of habeas corpus (Doc. No. 1) is hereby dismissed without

11

prejudice to its refiling by petitioner with a copy of an order from the Ninth Circuit

12

Court of Appeals authorizing him to file a second or successive petition; and

13
14
15

2. The Clerk of the Court is directed to close this case.
IT IS SO ORDERED.
Dated:

December 2, 2016
UNITED STATES DISTRICT JUDGE

16
17
18
19
20
21
22
23
24
25
26
27
28
3