Leroy Tate, Jr. v. Edward Borla, Warden

• Court: District Court, E.D. California
• Decided: December 4, 2025
• Docket: 1:25-cv-01704
• Status: Unknown

Opinion

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 LEROY TATE, JR., Case No. 1:25-cv-01704-SKO (HC)

12 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS DUPLICATIVE AND 13 SUCCESSIVE PETITION FOR WRIT OF HABEAS CORPUS AND DENY MOTION 14 v. FOR STAY

15 [Docs. 1, 3]

16 EDWARD BORLA, Warden, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 17 Respondent. [TWENTY-ONE DAY OBJECTION 18 DEADLINE]

19 20 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 21 pursuant to 28 U.S.C. § 2254. He filed the instant petition in this Court on November 28, 2025. 22 He also filed a motion for stay and abeyance. Because the petition is duplicative and 23 successive, the Court will recommend it be DISMISSED and the motion for stay be DENIED. 24 DISCUSSION 25 I. Preliminary Review of Petition 26 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 27 review of each petition for writ of habeas corpus. The Court must dismiss a petition 1 ]f it plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of 2 the Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 3 1990). A petition for habeas corpus should not be dismissed without leave to amend unless it 4 appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. 5 Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 6 II. Duplicative Petition 7 Duplicative lawsuits filed by a petitioner proceeding in forma pauperis are subject to 8 dismissal as either frivolous or malicious under 28 U.S.C. § 1915(e). See, e.g., Cato v. United 9 States, 70 F.3d 1103, 1105 n. 2 (9th Cir.1995); McWilliams v. State of Colo., 121 F.3d 573, 10 574 (10th Cir.1997); Pittman v. Moore, 980 F.2d 994, 994–95 (5th Cir.1993); Bailey v. 11 Johnson, 846 F.2d 1019, 1021 (5th Cir.1988). An in forma pauperis complaint that merely 12 repeats pending or previously litigated claims may be considered abusive and dismissed under 13 § 1915. Cato, 70 F.3d at 1105 n. 2; Bailey, 846 F.2d at 1021. “Dismissal of the duplicative 14 lawsuit, more so than the issuance of a stay or the enjoinment of proceedings, promotes judicial 15 economy and the comprehensive disposition of litigation.” Adams v. California, 487 F.3d 684, 16 688, 692–94 (9th Cir. 2007). 17 Petitioner filed the instant petition on November 28, 2025, challenging his 2004 18 conviction in Kings County Superior Court for second degree murder. Petitioner previously 19 filed an identical petition on November 18, 2025, in Tate v. Borla, Case No. 1:25-cv-01583- 20 KES-SAB-HC. That case is currently pending dismissal as an unauthorized successive petition. 21 The instant case is duplicative and should be dismissed. 22 III. Successive Petition 23 A federal court must dismiss a second or successive petition that raises the same grounds 24 as a prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive 25 petition raising a new ground unless the petitioner can show that 1) the claim rests on a new, 26 retroactive, constitutional right or 2) the factual basis of the claim was not previously 27 discoverable through due diligence, and these new facts establish by clear and convincing 1 applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). However, it is not 2 the district court that decides whether a second or successive petition meets these requirements. 3 Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted by 4 this section is filed in the district court, the applicant shall move in the appropriate court of 5 appeals for an order authorizing the district court to consider the application." In other words, 6 Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive 7 petition in district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must 8 dismiss any second or successive petition unless the Court of Appeals has given Petitioner 9 leave to file the petition because a district court lacks subject-matter jurisdiction over a second 10 or successive petition. Burton v. Stewart, 549 U.S. 147, 152 (2007); Cooper v. Calderon, 274 11 F.3d 1270, 1274 (9th Cir. 2001). 12 In this case, Petitioner challenges his 2004 Kings County second degree murder 13 conviction. Petitioner previously sought federal habeas relief in this Court with respect to the 14 same conviction. See Tate v. Knipp, No. 1:13-cv-00025-LJO-MJS (dismissed as untimely); Tate 15 v. Borla, No. 1:24-cv-00324-KES-SKO (dismissed as successive).1 Accordingly, the Court finds 16 that the instant petition is “second or successive” under § 2244(b) and should be dismissed. See 17 McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (holding “dismissal of a first habeas 18 petition for untimeliness presents a ‘permanent and incurable’ bar to federal review of the 19 underlying claims,” and thus renders subsequent petitions “second or successive”). 20 IV. Motion for Stay and Abeyance 21 Petitioner also moves for a stay and abeyance pursuant to Rhines v. Weber, 544 U.S. 22 269 (2005). Under Rhines, “stay and abeyance” is available only in “limited circumstances,” 23 and only when: (1) there is “good cause” for the failure to exhaust; (2) the unexhausted claims 24 are not “plainly meritless”; and (3) the petitioner did not intentionally engage in dilatory 25 litigation tactics. 544 U.S. at 277–78. However, as set forth above, the petition is duplicative 26 and an unauthorized successive petition. Accordingly, Petitioner’s motion to stay should be 27 1 The Court may take judicial notice of its own records in other cases. United States v. Wilson, 631 F.2d 1 denied. 2 ORDER 3 Accordingly, the Clerk of Court is DIRECTED to randomly assign a District Judge to 4 this case. 5 RECOMMENDATION 6 For the foregoing reasons, the Court HEREBY RECOMMENDS that the petition be 7 DISMISSED as duplicative and successive, and Petitioner’s motion for stay be DENIED. 8 This Findings and Recommendation is submitted to the United States District Court 9 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 10 304 of the Local Rules of Practice for the United States District Court, Eastern District of 11 California. Within twenty-one (21) days after being served with a copy of this Findings and 12 Recommendation, a party may file written objections with the Court and serve a copy on all 13 parties. Id. The document should be captioned, “Objections to Magistrate Judge’s Findings and 14 Recommendation” and shall not exceed fifteen (15) pages, except by leave of court with good 15 cause shown. The Court will not consider exhibits attached to the Objections. To the extent a 16 party wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its 17 CM/ECF document and page number, when possible, or otherwise reference the exhibit with 18 specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by 19 the District Judge when reviewing these Findings and Recommendations pursuant to 28 U.S.C. 20 § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time 21 may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th 22 Cir. 2014). This recommendation is not an order that is immediately appealable to the Ninth 23 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 24 Appellate Procedure, should not be filed until entry of the District Court's judgment. 25 IT IS SO ORDERED. 26

27 Dated: December 4, 2025 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27