(HC) Stewart v. Macomber ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY W. STEWART, Case No. 1:23-cv-00374-CDB (HC) 12 Petitioner, FINDINGS AND RECOMMENDATION THAT (1) THE PETITION FOR WRIT OF HABEAS 13 v. CORPUS BE DISMISSED WITH PREJUDICE, AND (2) PETITIONER BE DECLARED A 14 J. MACOMBER, et al. VEXATIOUS LITIGANT 15 Respondents. (Docs. 1, 6) 16 14-DAY DEADLINE 17 18 Petitioner Gregory W. Stewart (“Petitioner”) is a state prisoner proceeding pro se with a 19 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). On March 28, 2023, the 20 undersigned conducted a preliminary screening of the petition. (Doc. 6). The undersigned found 21 Petitioner had sought relief from this Court on numerous occasions for the same conviction he attacks 22 in this action. See id. at 2-4 (citing cases). Petitioner made no showing that he had obtained prior 23 leave from the Ninth Circuit to file a successive petition. Id. at 4. Further, the undersigned found 24 Petitioner qualified as a vexatious litigant. Id. at 4-5. Specifically, the undersigned noted Petitioner 25 had submitted photocopies of the same petition multiple times to other judges of this Court containing 26 duplicative claims that have all been dismissed. Id. at 5. The Court provided Petitioner 30 days to 27 show cause in writing why his petition should not be dismissed for being a successive petition and 28 why he should not be deemed a vexatious litigant. Id. 1 On April 10, 2023, Petitioner filed a response to the order to show cause. (Doc. 7). Petitioner 2 asks for a motion for reconsideration, a motion and application for leave, and asserts objections to the 3 magistrate judge’s findings and recommendations. Id. at 1. Thereafter, Petitioner lists cases he has 4 filed to this Court and the Ninth Circuit. Id. at 2-6. The undersigned notes again it appears Petitioner 5 has submitted photocopies of the same “objections” multiple times to this Court.1 6 Accordingly, because Petitioner’s responsive filing to the order to show cause does not, in fact, 7 respond to the issues regarding successive petition and vexatious litigation, IS HEREBY ORDERED: 8 1. The Clerk of Court is DIRECTED to randomly assign a district judge to this action for 9 the purposes of reviewing these findings and recommendations; 10 And IT IS HEREBY RECOMMENDED: 11 1. That the petition for writ of habeas corpus (Doc. 1) be DISMISSED WITH 12 PREJUDICE as an unauthorized successive petition; and 13 2. That Petitioner be declared a vexatious litigant subject to pre-filing conditions set forth 14 below, pursuant to 28 U.S.C. § 1651(a) and the Court’s inherent power to regulate 15 abusive litigation, for the reasons addressed in the Court’s March 28, 2023, order to 16 show cause (Doc. 6): 17 a. Petitioner is required to file a motion requesting leave of court before filing any 18 new petition for writ of habeas corpus in the United States District Court for the 19 Eastern District of California. Such a motion must include a copy of this order 20 and an order of the Court of Appeals authorizing any second/successive 21 petition. 22 These findings and recommendations will be submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after being 24 25 1 The Court may take judicial notice of its own records in other cases. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). Here, Petitioner has filed similar, photocopy “objections” in this 26 district. See e.g., Stewart v. Macomber, No. 1:22-cv-01121-ADA-EPG (Doc.12); Stewart v. Macomber, No. 1:21-cv-00063-DAD-HBK (Doc.11); Stewart v. Macomber, No. 1:20-cv-00221- 27 DAD-EPG (Doc. 8); Stewart v. Macomber, No. 1:20-cv-01541-DAD-JLT (Doc. 8); Stewart v. Macomber, No. 1:20-cv-00969-DAD-SAB (Doc. 8); Stewart v. Macomber, No. 1:20-cv-01323-DAD- 28 JLT (Doc. 9); Stewart v. Macomber, No. 1:19-cv-01056-LJO-JLT (Doc. 7); Stewart v. Macomber, No. 1:17-cv-01420-LJO-EPG (Doc.10). 1 || served with these findings and recommendations, Petitioner may file written objections with the Cou 2 || The document should be captioned “Objections to Magistrate Judge’s Findings and 3 || Recommendations.” Petitioner is advised that failure to file objections within the specified time may 4 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 5 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 |/IT IS SO ORDERED. Dated: _ September 19, 2023 | ) Ww Vv RY 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28