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Michael Neil Jacobsen v. Margret Mims

March 27, 2013

MICHAEL NEIL JACOBSEN,
PETITIONER,
v.
MARGRET MIMS,
RESPONDENT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DISMISSING THE PETITION FOR LACK OF SUBJECT MATTER JURISDICTION (DOC. 1) ORDER DISMISSING PETITIONER'S MOTIONS AS MOOT (DOCS. 4, 6) ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND DIRECTING THE CLERK TO CLOSE THE CASE

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a writing signed by Petitioner and filed on Petitioner's behalf on March 6, 2013 (doc. 5). Pending before the Court is the petition, which was filed on February 21, 2013.

I. Screening the Petition

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d at 491.

The Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001). A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted.

Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

II. Background

Petitioner alleges that he is an inmate of the Fresno County Jail. Petitioner is not serving any sentence at this time, but is in pretrial custody on charges that include an allegation of a prior conviction. Petitioner alleges that on February 2, 2003, in the Superior Court of the State of California, County of Fresno, Petitioner was convicted of corporal injury to a spouse in violation of Cal. Pen. Code § 273.5(a) with enhancements for use of a deadly weapon pursuant to Cal. Pen. Code § 12022(b)(1) and for infliction of great bodily injury in violation of Cal. Pen. Code § 12022.7(e); Petitioner was given a six-year sentence. (Pet. 1.)

Petitioner raises the following claims in the petition: 1) Petitioner was denied the effective assistance of counsel in the prior proceeding in which his plea to the great bodily injury enhancement was taken because his counsel had a conflict of interest; 2) the laws defining and imposing the enhancements pursuant to §§ 12022.7(e) and 12022(b)(1) have been repealed as of January 1, 2012; 3) the enhancement pursuant to Cal. Pen. Code § 12022.7(e) is being used as a prior "strike" to render or maintain present charges against him as felonies instead of misdemeanors; and 4) the enhancement pursuant to Cal. Pen. Code § 12022.7(e) is being used as a prior "strike" to set Petitioner's bail unreasonably high at an amount of $1,900,000.00. (Id. at 4-5.)

The present petition is not the first petition filed with respect to Petitioner's conviction of spousal abuse pursuant to which he suffered an enhanced sentence. The Court may take judicial notice of court records. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir. 1981). The Court will take judicial notice of its own dockets.

In Michael N. Jacobsen v. M. S. Evans, case number 1:06 CV 01254 LJO WMW HC, on February 6, 2008, the Court dismissed as untimely a petition that challenged Petitioner's 2003 Fresno County conviction of felony domestic violence in violation of Cal. Pen. Code § 273.5 and his enhancements pursuant to Cal. Pen. Code §§ 12022(b)(1) and 12022.7(e). (Docs. 1 & 16.) On appeal, the judgment denying the petition was affirmed. (Id. at docs. 31, 32.)

III. Successive Petition

Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

Under the AEDPA, a federal court must dismiss a second or successive petition that raises the same grounds as a prior petition. 28 U.S.C. ยง 2244(b)(1). The Court must also dismiss a second or successive petition raising a new ground unless the petitioner can show that 1) the claim rests on a new, retroactive, constitutional right or 2) the factual basis of the claim was not previously discoverable through due diligence, and the new facts establish by clear and convincing evidence that but for the constitutional ...


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