1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY W. STEWART, Case No. 1:23-cv-00374-KES-CDB (HC)

12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS THAT (1) THE 13 v. PETITION FOR WRIT OF HABEAS CORPUS BE DISMISSED WITH PREJUDICE AND (2) 14 PETITIONER BE DECLARED A VEXATIOUS J. MACOMBER, et al. LITIGANT 15 Respondents. (Doc. 9) 16

17 18 19 Petitioner Gregory W. Stewart (“Petitioner”) is a state prisoner proceeding pro se with a 20 petition for habeas corpus pursuant to

. (Doc. 1). On March 28, 2023, the 21 assigned magistrate judge conducted a preliminary screen of the petition and found Petitioner had 22 sought relief from this Court on numerous occasions for the same conviction he attacks in this 23 action. See (Doc. 6 at 2-4) (citing cases). Specifically, the assigned magistrate judge noted 24 Petitioner had submitted photocopies of the same petition multiple times to other judges of this 25 Court containing duplicative claims that have all been dismissed.

. The assigned 26 magistrate judge ordered Petitioner to show cause why his petition should not be dismissed for 27 being a successive petition and why he should not be deemed a vexatious litigant.

. 1 On April 10, 2023, Petitioner filed a response to the order to show cause, again submitting 2 a photocopy of “objections” that had been filed multiple times to this Court. (Doc. 7). On 3 September 20, 2023, the assigned magistrate judge issued findings and recommendations that the 4 petition be dismissed with prejudice and Petitioner be declared a vexatious litigant. (Doc. 9). 5 The findings and recommendations advised Petitioner he must file any objections within 14 days 6 after service of the order and that the “failure to file objections within the specified time may 7 result in the waiver of rights on appeal.”

at 2-3 (citing Wilkerson v. Wheeler,

, 8 839 (9th Cir. 2014); Baxter v. Sullivan,

(9th Cir. 1991)). Petitioner did not 9 file objections or any other response to the findings and recommendations, and the deadline to do 10 so has passed. 11 Pursuant to

(b)(1), this Court conducted a de novo review of this case. 12 Having carefully reviewed the entire matter, this Court concludes the findings and 13 recommendations are supported by the record and by proper analysis. 14 The Court next turns to the question of whether a certificate of appealability should issue. 15 Generally, a certificate of appealability may issue under

“only if the applicant 16 has made a substantial showing of the denial of a constitutional right.”

(c)(2). 17 Where, as here, the petition is dismissed on procedural grounds, a certificate of appealability 18 “should issue if the prisoner can show: (1) ‘that jurists of reason would find it debatable whether 19 the district court was correct in its procedural ruling’; and (2) ‘that jurists of reason would find it 20 debatable whether the petition states a valid claim of the denial of a constitutional right.’” Morris 21 v. Woodford,

(9th Cir. 2000) (quoting Slack v. McDaniel,

, 484 22 (2000)). Petitioner has not shown that jurists of reasons would find it debatable whether the 23 instant action is a second or successive habeas petition or that he has obtained the authorization 24 from the court of appeals required to proceed with such a petition. For these reasons, the Court 25 declines to issue a certificate of appealability. Accordingly, the Court HEREBY ORDERS: 26 1. The September 20, 2023, findings and recommendations (Doc. 9) are adopted in full; 27 2. The petition for writ of habeas corpus (Doc. 1) is DISMISSED WITH PREJUDICE as an 1 3. Petitioner is declared a vexatious litigant subject to pre-filing conditions set forth below, 2 pursuant to

(a) and the Court’s inherent power to regulate abusive 3 litigation, for the reasons addressed in the findings and recommendations (Doc. 9) and the 4 Court’s March 28, 2023, order to show cause (Doc. 6): 5 a. Petitioner is required to file a motion requesting leave of court before filing any 6 new petition for writ of habeas corpus in the United States District Court for the 7 Eastern District of California. Such a motion must include a copy of this order and 8 an order of the Court of Appeals authorizing any second/successive petition. 9 10 11 | TPIS SO ORDERED. _ 12 Dated: _ March 20, 2024 4h 3 UNITED STATES DISTRICT JUDGE

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