Dickerson v. Vasquez

Filing 10

ORDER DISMISSING ACTION for Failure to State a Claim, Maliciousness, and Abuse of Judicial Process signed by District Judge Dale A. Drozd on 12/30/2016. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY DICKERSON,

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Petitioner,

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No. 1:16-cv-01889-DAD-SKO

v.
PAT L. VASQUEZ,

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ORDER DISMISSING ACTION FOR
FAILURE TO STATE A CLAIM,
MALICIOUSNESS, AND ABUSE OF
JUDICIAL PROCESS

Respondent.
(Doc. No. 1)

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Brandon Alexander Favor (aka Brandon Favor-El) is a state prisoner confined in the

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California Correctional Institution, Tehachapi, California. On December 12, 2016, Mr. Favor

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filed what purports to be a petition for writ of habeas corpus (28 U.S.C. § 2254) on behalf of

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another inmate, Gregory Dickerson.

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Mr. Favor is well known to this court. Since 2013, Mr. Favor has filed sixteen habeas

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petitions and seven § 1983 complaints in the Eastern District of California1 as well as filing

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additional petitions and complaints in the Central and Southern Districts of California.

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I.

THE PETITION

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As with the complaints and petitions that Mr. Favor has filed on his own behalf, the

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above-captioned petition is rambling, incoherent, and fails to state any cognizable claim for relief

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under federal law. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009); Bell Atl. Corp. v. Twombly,

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550 U.S. 544 (2007). The heading includes the name of the “Cochran Law Firm,” an actual law

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firm doing business in Los Angeles, California, and nationwide. The Cochran Law Firm is also

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listed as a recipient of the petition in the proof of service appended to the pleading. Instead of

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naming an attorney and specifying his or her bar number, the filer is indicated as, “G60488-

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Favor-Legal Assistant.” (Doc. No. 1 at 1.) “G60488” is the prisoner number assigned to Mr.

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Favor by the California Department of Corrections and Rehabilitation.2

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Information concerning the putative petitioner’s conviction and sentence has been omitted

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from the petition filed with the court. The sole ground for relief is stated to be “non-statutory

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relief.” (Doc. No. 1 at 2.) The supporting facts alleged in the petition are convoluted and

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illogical, and fail to support any cognizable federal habeas claim. In their entirety, the facts

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alleged in the petition are:

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Favor v. California, No. 1:13-cv-00207-GSA; Favor v. Harris, No. 1:15-cv-00601-SAB; Favor
v. Davey, No. 1:15-cv-00973-LJO-SKO; Favor v. California State Prison, No. 1:15-cv-01009LJO-DLB PC); Favor v. Magana, No. 1:15-cv-01023-LJO-JLT; Favor v. Dep’t of Corrections,
No. 1:15-cv-01387-LJO-MJS; Favor-El v. Guthry, No. 1:15-cv-01864-MJS; Favor-El v. Rome,
No. 1:15-cv-01865; Favor v. Paramo, No. 1:16-cv-00574-MJS; Favor v. California, No. 1:16-cv00732-MJS; Favor v. Paramo, No. 1:16-cv-00810-JLT; Favor v. Vasquez, No. 1:16-cv-01444SKO; Favor v. Minaj, No. 1:16-cv-01702-MJS; Favor v. Harper, No. 1:16-cv-01704-MJS; Favor
v. Williams, No. 1:16-cv-01739-LJO-SKO; Favor v. Ryan, No. 1:16-cv-01790-JLT; Favor v.
Vasquez, No. 1:16-cv-01791-MJS; Favor-El v. Rome, No. 1:16-cv-01808-DAD-SKO; Favor v.
Vasquez, No. 1:16-cv-01809-JLT; Favor v. Minaj, No. 1:16-cv-01851-JLT; Favor v. Calipatria
State Prison, No. 2:15-cv-01386-KJM-DAD; Favor v. Richard J. Donovan Correctional Facility,
No. 2:15-cv-01396-EFB; Favor-El v. United States of America, No. 2:15-cv-01448-GEB-AC.
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State of California Inmate Locator, http://inmatelocator.cdcr.ca.gov/search.aspx (search by
“Last Name” for “Favor”) (last visited Dec. 21, 2016).
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To wit petitioner undergoes prison punishment after 61 years to life
where victim person for robbery or rather grand theft of personal
property to collect five thousand dollars under anther [sic] person
NANCY SMITH (also [as] [sic] victim) whom under received
information by and thru Nancy Smith receiving information to
commit crime GRAND THEFT against FAYE BURNWORTH in
the amount of five thousand dollars ($5,000.00) with along father
parent EDWARD DICKERSON, SR., as a developed “pigeon
drop” type scheme onto elderly woman “after taxes on found
money” petitioner seeks immediate relief under NEWLY
DISCOVERED EVIDENCE as victim person readily uncontested.

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(Doc. No. 1 at 2.)
The petition discloses only a direct appeal, apparently from petitioner’s original judgment

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of conviction, to the California Court of Appeal for the Fifth Appellate District, decided January

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23, 2001. The conclusory allegation of unspecified newly discovered evidence is not alleged to

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have been presented to the California courts. The petition is unsigned, but the proof of service

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has been signed with a scribble attributed to petitioner Gregory Dickerson.
Appended to the petition is a state court motion for bail or release on own recognizance

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pending appeal, dated December 7, 2016, and again attributed to a Los Angeles law firm, but

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completed in what appears to be Mr. Favor’s hand printing. The proof of service of the state

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court motion is signed with a scribble attributed to Mr. Favor.

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II.

UNAUTHORIZED REPRESENTATION BY A NON-ATTORNEY
Mr. Favor, who is not an attorney, may not act on behalf of petitioner or any other party

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proceeding pro se. The privilege to proceed pro se is personal to the litigant and does not extend

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to other parties or entities acting on his behalf. See Simon v. Hartford Life, Inc., 546 F.3d 661,

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664 (9th Cir. 2008). “[A] non-attorney may appear only in her own behalf.” Cato v. United

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States, 70 F.3d 1103, 1105 n.1 (9th Cir. 1995). Although a person who is not an attorney may

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appear pro se on his own behalf, see 28 U.S.C. § 1654, “he has no authority to appear as an

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attorney for others than himself.” McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1966).

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Although the court may take judicial notice of the CDCR inmate directory, which reports that an

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inmate named Gregory Dickerson is incarcerated at California Correctional Institution,3 the

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State of California Inmate Locator, http://inmatelocator.cdcr.ca.gov/search.aspx (search by
“Last Name” for “Dickerson”) (last visited Dec. 21, 2016).
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unsigned petition provides no basis by which the court may conclude that Mr. Favor filed the

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petition with Mr. Dickerson’s knowledge or permission.

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III.

PETITIONER’S FAILURE TO SIGN PETITION

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A federal habeas petition must “be signed under penalty of perjury by the petitioner or by

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a person authorized to sign if for the petition under 28 U.S.C. § 2242.” Rule 2(c)(5) of the Rules

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Governing Section 2254 Cases. No one has signed the petition in this case.

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IV.

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FAILURE TO STATE A FEDERAL CLAIM
The scope of habeas corpus is prescribed by statute. Section 2241(c) of Title 28 provides

that habeas corpus shall not extend to a prisoner unless he is “in custody in violation of the

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Constitution.” Title 28 U.S.C. § 2254(a) states, “[A] district court shall entertain an application

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for a writ of habeas corpus in behalf of a person in custody pursuant to a judgment of a State

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court only on the ground that he is in custody in violation of the Constitution or laws or treaties of

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the United States.” See also Rule 1 of the Rules Governing Section 2254 Cases.
The Supreme Court has held that “the essence of habeas corpus is an attack by a person in

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custody upon the legality of that custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). To

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succeed in a petition pursuant to § 2254, a petitioner must demonstrate that the adjudication of his

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claim in state court “resulted in a decision that was contrary to, or involved an unreasonable

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application of, clearly established Federal law, as determined by the Supreme Court of the United

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States; or resulted in a decision that was based on an unreasonable determination of the facts in

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light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2).

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The habeas petition filed in this case fails to state a cognizable claim for federal habeas

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relief. It does not allege a violation of the Constitution or federal law, nor does it argue that the

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petitioner is in custody in violation of the Constitution or federal law. The only possible alleged

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grounds for relief consist of the stated claim for “non-statutory relief” and the unsupported

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allegation of unspecified newly discovered evidence. That allegation is insufficient to state a

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cognizable claim for habeas relief.

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V.

NO EXHAUSTION OF STATE REMEDIES

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A petitioner who is in state custody and wishes to collaterally challenge his conviction by

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a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1).

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The exhaustion doctrine is based on comity to the state court and gives the state court the initial

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opportunity to correct the state’s alleged constitutional deprivations. Coleman v. Thompson, 501

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U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158,

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1163 (9th Cir. 1988).

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A petitioner can satisfy the exhaustion requirement by providing the highest state court

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with a full and fair opportunity to consider each claim before presenting it to the federal court.

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Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971);

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Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest

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state court was given a full and fair opportunity to hear a claim if the petitioner has presented the

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highest state court with the claim’s factual and legal basis. Duncan, 513 U.S. at 365; Kenney v.

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Tamayo-Reyes, 504 U.S. 1, 8 (1992).

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The habeas petition before the court does not allege that petitioner has ever presented any

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claim to the California Supreme Court. Even if the court could somehow conclude that the

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petition articulated a cognizable federal habeas claim, in the absence of the California Supreme

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Court’s having been given a full and fair opportunity to consider the claim, any such claim would

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be unexhausted and thus, outside federal habeas jurisdiction.

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VI.

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ABSENCE OF GOOD FAITH
“Notwithstanding any filing fee, or portion thereof, that may have been paid, the court

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shall dismiss the case at any time if the court determines that . . . the action or appeal—(i) is

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frivolous or malicious[, or] (ii) fails to state a claim on which relief may be granted . . . . 28

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U.S.C. § 1915(e)(2). Although this court dismisses this petition due to its failure to state a claim

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on which relief may be granted, the court would be remiss in ignoring Mr. Favor’s absence of

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good faith in filing it.

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To determine whether an individual has filed a pleading in good faith, a Court must
examine the good faith of the applicant. Kinney v. Plymouth Rock Squab Co., 236 U.S. 43, 46
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(1915); see also Wright v. Newsome, 795 F.2d 964, 968 n. 1 (11th Cir. 1986). In determining a

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litigant’s good faith, a court may consider not only the actual language of the complaint, but the

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circumstances and history of its filing, the nature of the allegations, and the presence or absence

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of probative facts. Spencer v. Rhodes, 656 F. Supp. 458, 463–64 (E.D.N.C,), aff’d, 826F.2d 1061

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(4th Cir. 1987). In view of the absence of any apparent participation by petitioner Gregory

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Dickerson, the court cannot determine what role, if any, Mr. Dickerson played in the filing of the

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petition pending before the court or whether Mr. Dickerson acted in good or bad faith with

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respect to its filing. Accordingly, the court will dismiss the petition without prejudice to Mr.

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Dickerson’s re-filing a petition for federal habeas relief should he seek to allege a meritorious

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ground for such relief in the future.
The court concludes, however, that Mr. Favor has acted in bad faith. First, Mr. Favor has

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acted with consciousness of the impropriety of his filing a habeas petition on behalf of another

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inmate. He has attempted to mislead the court to believe that the Cochran Law Firm—not Mr.

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Favor or Mr. Dickerson proceeding pro se—is prosecuting the petition on Mr. Dickerson’s

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behalf. By utilizing his CDCR identification number as if it were a bar admission number, Mr.

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Favor has attempted to lead an inattentive or uninformed reader to conclude that Mr. Favor is

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either admitted to the bar or somehow authorized to bring the petition as a “legal assistant.”

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Second, Mr. Favor has filed an incomplete petition, using only portions of court-provided

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forms for submission of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. That

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Mr. Favor has omitted all substantive and identifying information concerning Mr. Dickerson’s

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conviction and sentence suggests that for some reason unknown to this court, Mr. Favor may have

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sought to file the petition without Mr. Dickerson’s cooperation or knowledge.

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Mr. Favor has also filed a frivolous petition, advancing a meaningless claim (i.e., for

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“non-statutory relief”) supported by factual allegations that are garbled and nonsensical. His

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conclusory allegation of newly discovered evidence suggests his awareness that the claim is

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neither timely nor exhausted.

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Despite his extensive history of filings in this and other federal district courts, Mr. Favor
disregarded procedural and substantive requirements for the filing of cognizable claims for
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federal habeas relief. The court concludes that Mr. Favor has filed the above-captioned petition

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both frivolously and maliciously. Accordingly, the court warns Mr. Favor that such conduct on

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his part will not be tolerated in the future. In the event that Mr. Favor again files or attempts to

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file any action on behalf of any other person or represents himself as a “legal assistant” or as

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otherwise authorized to provide legal representation to another, the court will initiate proceedings

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to declare Mr. Favor a vexatious litigant and to restrict his ability to file in this court any future

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action on his own behalf without prior court approval.

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VII.

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CERTIFICATE OF APPEALABILITY
A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a

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district court’s denial of his petition, and an appeal is only allowed in certain circumstances.

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Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). Specifically, the federal rules governing

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habeas cases brought by state prisoners require a district court issuing an order denying a habeas

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petition to either grant or deny therein a certificate of appealability. See Rules Governing § 2254

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Case, Rule 11(a). A judge shall grant a certificate of appealability “only if the applicant has made

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a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and the

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certificate must indicate which issues satisfy this standard. 28 U.S.C. § 2253(c)(3). “Where a

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district court has rejected the constitutional claims on the merits, the showing required to satisfy §

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2253(c) is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find

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the district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

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McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made such a showing.

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Accordingly, a certificate of appealability will not be issued.
VIII.

CONCLUSION

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Accordingly and for the reasons set forth above:

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1. The petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 1) is

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dismissed without prejudice to petitioner Gregory Dickerson’s entitlement to file a

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subsequent petition alleging one or more cognizable federal claims;

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2. The filer of the petition, Brandon Alexander Favor, also known as Brandon Favor-El,

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is ordered to cease representing himself as a “legal assistant” or as affiliated with any
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law firm or legal entity;

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3. The filer of the petition, Brandon Alexander Favor, also known as Brandon Favor-El,

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is ordered to cease filing legal actions on behalf of any other individual or group; and

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4. The filer of the petition, Brandon Alexander Favor, also known as Brandon Favor-El,

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is warned that his violation of this order shall result in the court’s initiating

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proceedings to declare him a vexatious litigant and to order restrictions on his ability

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to file further legal actions in this court.

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IT IS SO ORDERED.
Dated:

December 30, 2016
UNITED STATES DISTRICT JUDGE

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