Favor v. Anderson

Filing 4

ORDER Requiring Petitioner to SHOW CAUSE Why Petitioner Should Not Be Declared a Vexatious Litigant, signed by Magistrate Judge Jennifer L. Thurston on 7/17/17: 10-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRANDON FAVOR,

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Petitioner,

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v.

No. 1:17-cv-00944-JLT (HC)
ORDER REQUIRING PETITIONER TO
SHOW CAUSE WHY PETITIONER
SHOULD NOT BE DECLARED A
VEXATIOUS LITIGANT
[TEN-DAY DEADLINE]

SHARON WIMFROY, et al.,

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Respondents.

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BACKGROUND

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Petitioner Brandon Alexander Favor (aka Brandon Favor-El) is currently incarcerated at

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California Correctional Institution in Tehachapi, California. He has filed the instant petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2254.

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On July 30, 2008, a jury convicted Petitioner of one count of first degree murder, two

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counts of attempted murder, and two counts of second degree robbery. On April 7, 2009, the Los

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Angeles County Superior Court sentenced him to an indeterminate term of life without the

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possibility of parole on the murder count and consecutive life terms on the two counts of

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attempted murder.

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

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For reasons discussed below, these petitions have been dismissed or transferred. In addition, he

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has attempted to file countless other pleadings which were rejected by the Court and returned to

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him for clear deficiencies rendering them ineligible to be filed.

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Petitioner has been declared a vexatious litigant in the Central District of California. See

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Favor v. Harper, 2017 WL 132830 (C.D. Cal. Jan. 13, 2017). For reasons discussed below, the

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Court ORDERS Petitioner to show cause why he should not be declared a vexatious litigant in

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this district as well.

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DISCUSSION
A.

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Preliminary Review of Petition
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a

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petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not

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entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases.

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The Advisory Committee Notes to Rule 8 of the Rules Governing Section 2254 Cases indicates

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that the Court may dismiss a petition for writ of habeas corpus on its own motion under Rule 4.

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However, a petition for writ of habeas corpus should not be dismissed without leave to amend

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unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v.

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

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B.

Problems with Dismissed and Pending Habeas Corpus Petitions

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All of Favor’s previous federal habeas corpus petitions that this Court has reviewed suffer

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from numerous procedural and substantive problems which make them subject to dismissal. This

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petition is no different.

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Of the petitions and complaints Petitioner has filed, all of them are incoherent, vague,

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rambling, and conclusory. Some of them are unsigned. A petition for writ of habeas corpus must

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specify the grounds for relief; state facts supporting each ground; state the relief requested; be

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printed, typewritten, or legibly handwritten; and be signed under penalty of perjury. See Rule

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2(c) of the Rules Governing Section 2254 Cases. The petition must be on the form approved by

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the Court or must substantially follow the form. See Rule 2(d) of the Rules Governing Section
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2254 Cases. The petition must make specific factual allegations that would entitle the petitioner

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to relief if they are true. O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). Summary

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dismissal is appropriate if the allegations in the petition are vague, conclusory, palpably

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incredible, or patently frivolous or false. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir.

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1990).

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All of the petitions fail to state cognizable claims for relief under federal law. Title 28

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U.S.C. § 2241(c) provides that habeas corpus shall not extend to a prisoner unless he is “in

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custody in violation of the Constitution.” Title 28 U.S.C. § 2254(a) states, “[A] district court

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shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant

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to a judgment of a State court only on the ground that he is in custody in violation of the

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Constitution or laws or treaties of the United States.” To succeed in a petition pursuant to § 2254,

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a petitioner must demonstrate that the adjudication of his claim in state court “resulted in a

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decision that was contrary to, or involved an unreasonable application of, clearly established

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Federal law, as determined by the Supreme Court of the United States; or resulted in a decision

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that was based on an unreasonable determination of the facts in light of the evidence presented in

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the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). None of the petitions allege a violation

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of the Constitution or federal law, or argue that the petitioner is in custody in violation of the

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Constitution or federal law. While there is mention of due process and innocence, no actual,

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cognizable claims are presented. None of the petitions show how the adjudication of the claims

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

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of, clearly established Federal law, . . . or resulted in a decision that was based on an unreasonable

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determination of the facts . . . .” 28 U.S.C. § 2254.

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Many of the petitions do not name a proper respondent. Pursuant to Rule 2(a) of the

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Rules Governing Section 2254 Cases, if the petitioner is in custody under a state court judgment,

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he must name as respondent the state officer who has custody. See also Ortiz-Sandoval v.

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Gomez, 81 F.3d 891, 894 (9th Cir. 1996). Failure to name a proper respondent requires dismissal

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for lack of jurisdiction.

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Petitioner has repeatedly filed petitions in this Court challenging his Los Angeles County
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conviction. The federal venue statute requires that a civil action, other than one based on

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diversity jurisdiction, be brought only in “(1) a judicial district where any defendant resides, if all

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defendants reside in the same state, (2) a judicial district in which a substantial part of the events

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or omissions giving rise to the claim occurred, or a substantial part of the property that is the

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subject of the action is situated, or (3) a judicial district in which any defendant may be found, if

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there is no district in which the action may otherwise be brought.” 28 U.S.C. § 1391(b). Despite

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being advised that the Central District of California is the proper district to challenge his Los

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Angeles County conviction, and regardless of the fact that all of these petitions are then

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transferred to the Central District, Petitioner continues to file petitions in this district challenging

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his Los Angeles conviction.
In addition, a district court must dismiss any claim presented in a second or successive §

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2254 petition that was presented in a prior application. 28 U.S.C. § 2244(b)(1). A district court

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must also dismiss any claim presented in a second or successive § 2254 petition unless (1) the

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

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

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

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

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

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have found Petitioner guilty of the underlying offense. See 28 U.S.C. § 2244(b)(2). The Court

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has dismissed numerous petitions as successive because Petitioner continues to file petitions

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challenging his Los Angeles conviction, yet Petitioner continues to file them.

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Petitioner has also filed several petitions presenting himself as an attorney or paralegal

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filing on behalf of another inmate. He is not an attorney and may not act on behalf of himself or

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another party proceeding pro se. The privilege to proceed pro se is personal to the litigant and

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does not extend to other parties or entities acting on his behalf. See Simon v. Hartford Life, Inc.,

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546 F.3d 661, 664 (9th Cir. 2008). “[A] non-attorney may appear only in her own behalf.” Cato

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

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attorney may appear pro se on his own behalf, see 28 U.S.C. § 1654, “he has no authority to
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appear as an attorney for others than himself.” McShane v. United States, 366 F.2d 286, 288 (9th

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Cir. 1966). Although he has been repeatedly counseled regarding his attempts to represent others,

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he persists on filing such petitions. In addition, on some occasions he has acted deceitfully. In

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clear attempts to circumvent the Court’s screening of his petitions and complaints, he has

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impersonated other individuals and employees of law firms. For example, in Case No. 1:16-cv-

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01901-MJS-HC, he filed a petition on behalf of Inmates Lakon Lee Larrimore and Johnathan

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Banks. In the heading, he included “Cochran Law Firm,” an actual law firm doing business in

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Los Angeles, California, and nationwide. The Cochran Law Firm was also listed in the proof of

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service. Instead of naming an attorney and specifying his or her bar number, the filer is indicated

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as, “Favor-G60488-Legal Assistant.” In actuality, “G60488” is the prisoner number assigned to

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Petitioner by the California Department of Corrections and Rehabilitation.

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Petitioner has also failed to demonstrate exhaustion of his state remedies. A petitioner

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who is in state custody and wishes to collaterally challenge his conviction by a petition for writ of

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habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). A petitioner can

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satisfy the exhaustion requirement by providing the highest state court with a full and fair

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opportunity to consider each claim before presenting it to the federal court. Duncan v. Henry, 513

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U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88 F.3d

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828, 829 (9th Cir. 1996). Of the petitions filed in this Court, none allege that the petitioner has

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ever presented any claim to the California Supreme Court. Even if the court could somehow

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conclude that the petition articulated a cognizable federal habeas claim, in the absence of the

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California Supreme Court’s having been given a full and fair opportunity to consider the claim,

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any such claim would be unexhausted.

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C.

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Vexatious Litigant Standard
A district court has the power under the All Writs Act to enjoin litigants who have lengthy

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histories of abusive litigations. See 28 U.S.C. § 1651. Federal courts possess the inherent power

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to “regulate the activities of abusive litigants by imposing carefully tailored restrictions under . . .

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appropriate circumstances.” Ringgold-Lockhart v. County of Los Angeles, 761 F.3d 1057, 1061

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(9th Cir. 2014) (quoting DeLong v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990)). “Flagrant
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abuse of the judicial process cannot be tolerated because it enables one person to preempt the use

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of judicial time that properly could be used to consider the meritorious claims of other litigants.”

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DeLong, 912 F.3d at 1148; see also Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057

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(9th Cir. 2007). Enjoining litigants from filing new actions under 28 U.S.C. § 1651(a) is one such

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restriction that the district court may take. DeLong, 912 F.2d at 1147.

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The Court may issue an order declaring a litigant to be a vexatious litigant and require the

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litigant to seek permission from the Court prior to filing any future suits. See Weissman v. Quail

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Lodge Inc., 179 F.3d 1194, 1197 (9th Cir. 1999); DeLong, 912 F.2d at 1146-47. To issue such

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order, the Court must ensure that: (1) the petitioner was given adequate notice to oppose a

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restrictive pre-filing order; (2) there is an adequate record of case filings to show the petitioner is

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abusing the judicial system; (3) there are substantive findings as to the frivolousness or harassing

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nature of the petitioner’s filings; and (4) the order is narrowly tailored to remedy only the

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petitioner’s particular abuses. O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990); DeLong,

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912 F.2d at 1147-49.

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While the first two requirements are procedural, the latter two are substantive, and a

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“separate set of considerations” may provide a “‘helpful framework’” in “‘applying the two

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substantive factors.’” Ringgold-Lockhart, 761 F.3d at 1062 (quoting Molski, 500 F.3d at 1058).

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These substantive considerations are: “(1) the litigant's history of litigation and in particular

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whether it entailed vexatious, harassing or duplicative lawsuits; (2) the litigant's motive in

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pursuing the litigation, e.g., does the litigant have an objective good faith expectation of

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prevailing?; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused

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needless expense to other parties or has posed an unnecessary burden on the courts and their

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personnel; and (5) whether other sanctions would be adequate to protect the courts and other

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parties.” Molski, 500 F.3d at 1058 (quoting Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir.

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1986)). The Ninth Circuit has stated that “[t]he final consideration - whether other remedies

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‘would be adequate to protect the courts and other parties' is particularly important.” Ringgold-

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Lockhart, 761 F.3d at 1062.

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Petitioner has filed extensive habeas actions in this Court. His cases have been dismissed
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or transferred for the above-stated reasons, and they continue to be dismissed or transferred for

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those reasons. The Court has repeatedly counseled Petitioner on the proper requirements for

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filing a federal habeas petition, but he has ignored the Court’s orders and continued to file

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frivolous petitions subject to dismissal, or submit random, frivolous pleadings. He has also been

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warned that further attempts to file frivolous actions on his own behalf or on behalf of other

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prisoners would lead to the court initiating proceedings to declare him a vexatious litigant so as to

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restrict his ability to file in this court any future actions without court approval. See, e.g., Case

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Nos. 1:16-cv-01889-DAD-SKO; 1:16-cv-01912-DAD-EPG.

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Accordingly, Petitioner ORDERED to show cause why he should not be declared a

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vexatious litigant. If he is found to be a vexatious litigant, this Court will recommend that a pre-

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filing order be issued requiring him to obtain leave of court before filing any habeas petition in a

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new action or any document in a habeas case that is closed and final. Petitioner will be required to

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submit a copy of the Court's vexatious litigant order and a copy of the proposed filing with any

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motion seeking leave of court to file a new habeas action or any document in a habeas case that is

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closed and final.

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ORDER

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In accordance with the foregoing, Petitioner is ORDERED TO SHOW CAUSE why the

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Court should not deem him a vexatious litigant in light of his repeated filing of frivolous actions.

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If Petitioner objects to being declared a vexatious litigant, he shall file a response to this Order to

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Show Cause within ten days of the date of service of this Order and shall present any grounds he

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may have to controvert the Court's above findings. Petitioner is advised that his failure to

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respond will result in the Court determining whether he is a vexatious litigant without his

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analysis.

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IT IS SO ORDERED.
Dated:

July 17, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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