Opinion
1:23-cv-00374-CDB (HC)
09-19-2023
GREGORY W. STEWART, Petitioner, v. J. MACOMBER, et al. Respondents.
FINDINGS AND RECOMMENDATION THAT (1) THE PETITION FOR WRIT OF HABEAS CORPUS BE DISMISSED WITH PREJUDICE, AND (2) PETITIONER BE DECLARED A VEXATIOUS LITIGANT
(DOCS. 1, 6)
14-DAY DEADLINE
Petitioner Gregory W. Stewart (“Petitioner”) is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). On March 28, 2023, the undersigned conducted a preliminary screening of the petition. (Doc. 6). The undersigned found Petitioner had sought relief from this Court on numerous occasions for the same conviction he attacks in this action. See id. at 2-4 (citing cases). Petitioner made no showing that he had obtained prior leave from the Ninth Circuit to file a successive petition. Id. at 4. Further, the undersigned found Petitioner qualified as a vexatious litigant. Id. at 4-5. Specifically, the undersigned noted Petitioner had submitted photocopies of the same petition multiple times to other judges of this Court containing duplicative claims that have all been dismissed. Id. at 5. The Court provided Petitioner 30 days to show cause in writing why his petition should not be dismissed for being a successive petition and why he should not be deemed a vexatious litigant. Id.
On April 10, 2023, Petitioner filed a response to the order to show cause. (Doc. 7). Petitioner asks for a motion for reconsideration, a motion and application for leave, and asserts objections to the magistrate judge's findings and recommendations. Id. at 1. Thereafter, Petitioner lists cases he has filed to this Court and the Ninth Circuit. Id. at 2-6. The undersigned notes again it appears Petitioner has submitted photocopies of the same “objections” multiple times to this Court.
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 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-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-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).
Accordingly, because Petitioner's responsive filing to the order to show cause does not, in fact, respond to the issues regarding successive petition and vexatious litigation, IS HEREBY ORDERED:
1. The Clerk of Court is DIRECTED to randomly assign a district judge to this action for the purposes of reviewing these findings and recommendations;
And IT IS HEREBY RECOMMENDED:
1. That the petition for writ of habeas corpus (Doc. 1) be DISMISSED WITH PREJUDICE as an unauthorized successive petition; and
2. That Petitioner be declared a vexatious litigant subject to pre-filing conditions set forth below, pursuant to 28 U.S.C. § 1651(a) and the Court's inherent power to regulate abusive litigation, for the reasons addressed in the Court's March 28, 2023, order to show cause (Doc. 6):
a. Petitioner is required to file a motion requesting leave of court before filing any new petition for writ of habeas corpus in the United States District Court for the Eastern District of California. Such a motion must include a copy of this order and an order of the Court of Appeals authorizing any second/successive petition.
These findings and recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after being served with these findings and recommendations, Petitioner may file written objections with the Court. The document should be captioned “Objections to Magistrate Judge's Findings and
Recommendations.” Petitioner is advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.