(HC) Patterson v. Sherman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VESTER L. PATTERSON, No. 1:18-cv-01688-DAD-JDP (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 14 STU SHERMAN, PETITION FOR WRIT OF HABEAS CORPUS, AND DECLARING PETITIONER 15 Respondent. A VEXATIOUS LITIGANT SUBJECT TO PRE-FILING CONDITIONS 16 (Doc. Nos. 8, 9) 17 18 19 Petitioner Vester L. Patterson is a state prisoner proceeding pro se and in forma pauperis 20 with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred 21 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On February 19, 2020, the assigned magistrate judge issued findings and 23 recommendations, recommending that the pending petition for federal habeas relief be denied due 24 to petitioner’s failure to state a cognizable claim for federal habeas relief. (Doc. No. 8.) The 25 findings and recommendations were served upon all parties and contained notice that any 26 objections thereto were to be filed within fourteen (14) days from the date of service of the order. 27 No objections have been filed and the time in which to do so has now passed. 28 ///// 1 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 2 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 3 objections, the court concludes that the findings and recommendations are supported by the 4 record and proper analysis. 5 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 6 a certificate of appealability should issue. A prisoner seeking a writ of habeas corpus has no 7 absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed 8 under certain circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 9 (2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district 10 court issue or deny a certificate of appealability when entering a final order adverse to a 11 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 12 Cir. 1997). 13 If, as here, a court denies a petition for a writ of habeas corpus, the court may only issue a 14 certificate of appealability when “the applicant has made a substantial showing of the denial of a 15 constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must 16 establish that “reasonable jurists could debate whether (or, for that matter, agree that) the petition 17 should have been resolved in a different manner or that the issues presented were ‘adequate to 18 deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) 19 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 20 In the present case, the court concludes that petitioner has not made the required 21 substantial showing of the denial of a constitutional right to justify the issuance of a certificate of 22 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 23 entitled to federal habeas corpus relief wrong or debatable, and they would not conclude that 24 petitioner is deserving of encouragement to proceed further. The court therefore declines to issue 25 a certificate of appealability. 26 In conjunction with the pending findings and recommendations, the magistrate judge also 27 issued an order requiring petitioner to show cause why he should not be declared a vexatious 28 litigant. (Doc. No. 9.) As the magistrate judge noted, petitioner has initiated at least 40 other 1 actions in this district alone—none of which have been successful—and already been declared a 2 vexatious litigant in the Central District of California. (Id. at 3) (citing Patterson v. Ratelle, Case 3 No. 2:99-cv-00369-CM-RC (C.D. Cal. April 29, 1999))). The order to show cause was served on 4 petitioner and required him to respond within fourteen (14) days from the date of service of the 5 order. No response has been filed and the time to do so has now passed. 6 A review of petitioner’s litigation record leaves the court no choice but to conclude that he 7 has flagrantly abused the judicial process by filing dozens of frivolous and meritless lawsuits and 8 applications for habeas relief. (See Doc. No. 9 at 4) (documenting how petitioner has met the 9 standards under O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) and Molski v. Evergreen 10 Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007) to be declared a vexatious litigant).) This 11 behavior cannot be tolerated, see DeLong v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990) 12 (“Flagrant abuse of the judicial process cannot be tolerated because it enables one person to 13 preempt the use of judicial time that properly could be used to consider the meritorious claims of 14 other litigants.”), particularly in a district such as this one where judicial resources are taxed to 15 the point of a declared judicial emergency.1 Moreover, a vexatious litigant finding, where 16 appropriate, may impose pre-filing requirements to new applications for federal habeas relief. 17 See Jackson v. Felker, 729 F. Supp. 2d 1165, 1172, n. 4 (C.D. Cal. 2010) (“As of January 1, 2007, 18 this Court determined petitioner was a vexatious litigant due to his abuse of the writ.”) 19 Imposition of such pre-filing requirements with respect to any future applications for federal 20 habeas relief submitted by this petitioner is fully supported here. (Doc. No. 9 at 3) (“Petitioner 21 was declared a vexatious litigant in our neighboring court, the United States District Court for the 22 Central District of California, because his seven unsuccessful habeas corpus petitions there were 23 deemed an abuse of that court’s process.”). 24 Accordingly: 25 1. The findings and recommendations issued on February 19, 2020 (Doc. No. 8), are 26 adopted in full; 27 1 See Doc. No. 7 for more information regarding the Eastern District of California’s judicial 28 emergency. 1 2. The petition for writ of habeas corpus (Doc. No. 1) is denied; 2 3. The court declines to issue a certificate of appealability; 3 4. Petitioner is declared a vexatious litigant subject to the pre-filing conditions set 4 forth below: 5 a. To file a habeas corpus petitioner or prisoner civil rights complaint, 6 petitioner must: 7 i. Include with the petition or complaint a copy of this Vexatious 8 Litigant Order; 9 ii. Include with the petition or complaint the filing fee or a completed 10 application to proceed in forma pauperis, along with a certified 11 copy of his prison trust account statement; 12 iii. Use the proper form for a habeas corpus or prisoner civil rights 13 action; 14 iv. Name the proper parties; 15 v. Clearly and concisely specify the grounds for relief and facts 16 supporting each ground; 17 vi. Include only claims that are the proper subject matter for a habeas 18 corpus petition or a prisoner civil rights complaint; 19 vii. For habeas petitions: 20 a) include only claims that allege violations of the Federal 21 Constitution; 22 b) show that petitioner is in custody to challenge the 23 conviction that the claims arise from; 24 c) show that any arrest petitioner challenges led to a conviction 25 that petitioner is in custody to challenge; 26 d) prove that petitioner has exhausted his state court remedies 27 by having presented the petition’s claims to the California 28 Supreme Court in a procedurally proper form, and that his 1 direct appeal concerning the conviction being challenged 2 has been ruled on by the California Court of Appeal; 3 Viil. For prisoner civil rights complaints: 4 a) prove that petitioner has exhausted all available prison 5 administrative remedies; 6 b. Upon receipt of any habeas corpus petition or prisoner civil rights 7 complaint filed by petitioner, the Clerk of the Court is directed to mark the 8 petition “Received”; 9 C. The assigned judge will then screen the petition to determine if the above 10 requirements are met; 11 d. Only if petitioner meets all these requirements will the court file any future 12 habeas petitions or prisoner civil rights complaints submitted by petitioner; 13 e. All other habeas petitions or prisoner civil rights complaints will be 14 returned to petitioner; and 15 5. The Clerk of the Court is directed to close this case. 16 | IT IS SO ORDERED. si □ "7 Dated: _ March 20, 2020 J aL Al 5 7 a 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28