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Michael Aaron Witkin v. James A. Yates

February 10, 2011

MICHAEL AARON WITKIN, PETITIONER,
v.
JAMES A. YATES, WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. By this action, petitioner raises several claims challenging a 2005 judgment of conviction entered against him in the Sacramento County Superior Court for resisting an executive officer in violation of California Penal Code § 69. Petitioner was sentenced to two years in state prison on that conviction. On August 16, 2010, respondent moved to dismiss this action as barred by the applicable statute of limitations. (See Doc. No. 18.) By order filed October 18, 2010, the parties were directed to file supplemental briefs addressing whether petitioner was in custody on the challenged conviction at the time this action was filed. The parties each filed supplemental briefing, and respondent therein added a request for dismissal for lack of jurisdiction, contending that petitioner was not in custody on the challenged conviction when this action was filed.

In an order filed December 20, 2010, this court found that petitioner is presently in custody on a 2009 conviction which has been enhanced by the 2005 conviction, and that the court therefore has jurisdiction over the instant action. The court further found that, so construed, it appears that petitioner's challenge to his 2005 conviction is barred by the rule announced in Lackawanna County District Attorney v. Coss, 532 U.S. 394 (2001). The court granted petitioner a period of forty-five days in which to request voluntary dismissal of this action and referred the matter to the Office of the Federal Defender to advise petitioner concerning issues related to second or successive petitions. On January 21, 2011, petitioner filed a supplemental brief in which he continues to contend that he is in custody on the 2005 conviction. Petitioner has not requested voluntary dismissal of this action.

The relevant chronology of this case is as follows: 1. On June 29, 2005, petitioner was convicted of resisting an executive officer by use of force and violence in violation of California Penal Code § 69. (Lodged Document No. 1, Abstract of Judgment filed in Sacramento County Superior Court on December 14, 2005.)

2. On December 9, 2005, petitioner was sentenced to two years in state prison with respect to that conviction. (Id.)

3. On November 14, 2006, petitioner was paroled from state prison. (Lodged Document No. 4, Chronological History Log.)

4. On July 30, 2007, petitioner was returned to custody following the revocation of his parole. (Id.)

5. On December 2, 2007, petitioner was returned to parole supervision. (Id.) 6. On June 13, 2008, a criminal complaint was filed in Sacramento County Superior Court charging petitioner with one count of robbery by means of force and fear in violation of California Penal Code § 211, two counts of assault with a firearm in violation of California Penal Code § 245.2, and one count of being a felon in possession of a firearm in violation of California Penal Code § 12021(a). (Lodged Document No. 3, Clerk's Transcript on Appeal, at 7-10.) The complaint included enhancement allegations of, inter alia, personal use of a firearm and infliction of great bodily injury. (Id.) In addition, count four of the complaint alleged as a prior conviction the conviction for resisting arrest challenged in the instant petition. (Id. at 10.) An amended complaint was filed on January 13, 2009, and deemed an information, and an amended information was filed on April 13, 2009. (Id. at 15, 120.)

6. On June 25, 2008, petitioner's parole was again revoked and he was returned to custody for twelve months. (Id.)

7. On April 13, 2009, petitioner entered a plea of no contest to charges of attempted first degree robbery and assault with a firearm set forth in the amended information filed the same day. See ¶ 6, supra. (Lodged Document No. 3, Clerk's Transcript on Appeal, at 5, 120, 149.1.) Petitioner admitted two firearm enhancements and the prior conviction. (Id. at 149.1.) On May 29, 2009, petitioner was sentenced to a total of twenty-one years in state prison, including one year for the prior conviction enhancement. (Id.)

7. On July 8, 2009, petitioner was received at the Reception Center at North Kern State Prison as a parole violator with a new term. (Lodged Document No. 4, Chronological History Log, at 2.)

8. On or about December 9, 2009, petitioner filed*fn1 the instant federal habeas corpus petition.

Section 2254 of Title 28 of the United States Code provides:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

The "in custody" requirement of ยง 2254 is jurisdictional and is therefore "'the first question we must consider.'" Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010) (quoting Williamson ...


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