United States District Court, E.D. California
KENNETH A. JACKSON, Petitioner,
ERIC ARNOLD, Respondent.
FINDINGS AND RECOMMENDATIONS THAT COURT DISMISS
PETITION FOR WRIT OF HABEAS CORPUS ECF No. 16.
Kenneth A. Jackson, a state prisoner without counsel, seeks a
writ of habeas corpus under 28 U.S.C. § 2254. ECF 16.
Respondent moves to dismiss the case, arguing that the court
should abstain from exercising jurisdiction because
petitioner is still litigating his direct appeal. ECF No. 24.
While respondent’s motion to dismiss was pending,
petitioner’s direct appeal ended, and he presented his
habeas claims in state court. See People v. Jackson,
No. S250471 (Cal. Sup. Ct. Oct. 24, 2018); ECF No. 16 at 42.
However, I recommend dismissing the case for a different
reason: the petition plainly shows that petitioner is not
entitled to relief.
Rule 4 of the Rules Governing Section 2254 Cases, the judge
assigned to the habeas proceeding must examine the habeas
petition and order a response to the petition unless it
“plainly appears” that the petitioner is not
entitled to relief. See Valdez v. Montgomery, 918
F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147
F.3d 1124, 1127 (9th Cir. 1998). The rule allows courts to
dismiss petitions that are patently frivolous, vague,
conclusory, palpably incredible, or false. See Hendricks
v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). Although
this court screened the petition earlier in the case, ECF No.
19, a district court has the inherent authority to reconsider
an interlocutory order any time before the entry of judgment.
See Smith v. Clark Cty. Sch. Dist., 727 F.3d 950,
955 (9th Cir. 2013); Intamin, Ltd. v. Magnetar Techs.
Corp, 623 F.Supp.2d 1055, 1068 (C.D. Cal. 2009). In
light of certain facts shown in the exhibits attached to the
petition, ECF No. 1 at 44, 46-57, we reconsider our decision
to allow petitioner to proceed beyond preliminary review.
was convicted of 21 counts of arson in addition to other
related offenses, after allegedly starting fires around
Yosemite Lakes and in other areas of California. See
generally People v. Jackson, No. F069966, 2018 WL
3434934 (Cal.Ct.App. July 17, 2018). He contends that the
government unlawfully arrested him without probable cause.
Specifically, he argues that neither the criminal complaint
nor the investigation report submitted after his arrest could
show probable cause. ECF No. 16 at 26-39. According to
petitioner, because the government had no probable cause to
detain him, his trial counsel should have filed a motion to
dismiss the case or pursue other procedural devices to raise
the probable cause issue. Id. at 28, 33-35. The
criminal complaint and the investigation report attached to
the petition show that petitioner cannot obtain habeas
relief. Id. at 44, 46-57.
sole issue here is whether the government had probable cause
for petitioner’s arrest. “Probable cause to
justify an arrest means facts and circumstances within the
officer’s knowledge that are sufficient to warrant a
prudent person, or one of reasonable caution, in believing,
in the circumstances shown, that the suspect has committed,
is committing, or is about to commit an offense.”
United States v. Johnson, 913 F.3d 793, 801 (9th
Cir. 2019) (quoting Michigan v. DeFillippo, 443 U.S.
31, 37 (1979)) (internal alterations and quotation marks
omitted). Courts examine the events leading up to the arrest
and assess historical facts from the standpoint of an
objectively reasonable police officer. District of
Columbia v. Wesby, 138 S.Ct. 577, 586 (2018). Probable
cause requires only a “fair probability” that a
crime has been committed. United States v. Johnson,
913 F.3d 793, 801 (9th Cir. 2019) (quoting United States
v. Smith, 790 F.2d 789, 792 (9th Cir. 1986)). As the
Supreme Court has repeatedly stated, probable cause “is
not a high bar.” District of Columbia v.
Wesby, 138 S.Ct. 577, 586 (2018) (quoting Kaley v.
United States, 134 S.Ct. 1090, 1103 (2014)). Documents
filed in support of arrest must “be interpreted in a
‘common sense’” way rather than in a
“hypertechnical manner.” United States v.
Brown, 455 F.2d 1201, 1203 (9th Cir. 1972) (quoting
United States v. Ventresca, 380 U.S. 102, 109
the exhibits attached to the petition plainly show that
petitioner cannot prevail. The investigation report contains
statements by Andy Andersen, Fire Chief at the California
Department of Forestry and Fire Prevention. Id. at
44. Andersen stated:
From Saturday, May 11, 2013 through Tuesday, June 25, 2013,
CAL FIRE law enforcement conducted an investigation into a
serial arson problem in the Yosemite Lakes Park area. Through
the use of surveillance, officer observation, electronic
tracking data and video data, Kenneth Allen JACKSON was
identified as the individual responsible for thirty-one (31)
fires. The investigation showed all fires were lit in areas
that were downhill from home. JACKSON’s behavior and
premeditation displayed shows the willful and malicious
intent of his actions. One of the fires started by JACKSON
destroyed a single family home. During the course of a taped
interview, JACKSON also admitted to throwing a cigarette
out of the window of his truck, causing one of the
I declare under penalty of perjury that the foregoing is true
and correct to the best of my information and belief.
Id. (emphasis added). The criminal complaint alleges
that petitioner and a co-defendant (his wife) agreed to light
fires; acquired ignition devices and accelerants; engaged in
arson by setting fire to grass, trees, or structures; and
observed the progress of fire. Id. at 46-57. Given
these allegations in the two challenged
documents-particularly the allegation that petitioner
admitted to starting the fires-the government had the
requisite probable cause.
argues that neither the report nor the complaint could
establish probable cause because the documents: (1)
“contain no affirmative allegation that the declarant
spoke with personal knowledge of the matters contained
therein”; (2) do not “indicate any source for the
declarant’s belief”; and (3) do not “set
forth any other sufficient basis upon which a finding of
probable cause” could be made. ECF No. 16 at 27. The
investigation report does say that Andersen made his
statements under penalty of perjury “to the best of
[his] information, ” identifies the sources of
information-including petitioner’s own admission-and
the facts stated establish probable cause. Id. at
44. As for the criminal complaint, the government had no
obligation to show probable cause in a single document; it
could attach documents recounting facts such as those stated
in the investigation report to show probable cause. See
United States v. Sedaghaty, 728 F.3d 885, 911 (9th Cir.
2013); cf. United States v. Barnes, 895 F.3d 1194,
1200 (9th Cir. 2018).
petitioner cannot prevail on his claim that the government
lacked probable cause to arrest him. By extension, he cannot
prevail on his related claim that his counsel was ineffective
in failing to raise the probable cause issue. Petitioner is
not entitled to relief.
recommend that the court decline to issue a certificate of
appealability. A petitioner seeking a writ of habeas corpus
has no absolute right to appeal a district court’s
denial of a petition; he may do so only in limited
circumstances. See 28 U.S.C. § 2253;
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003).
Rule 11 Governing Section 2254 Cases requires a district
court to issue or deny a certificate of appealability when
entering a final order adverse to a petitioner. See
also Ninth Circuit Rule 22-1(a); United States v.
Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). A
certificate of appealability will not issue unless a
petitioner makes “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. §
2253(c)(2). This standard requires a petitioner to show that
“jurists of reason could disagree with the district
court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.”
Miller-El, 537 U.S. at 327; accord Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has
not made a substantial showing of the denial of a
recommend that the court deny respondent’s motion to
dismiss, ECF No. 24, as moot, dismiss the petition for a writ
of habeas corpus, and decline to issue a certificate of
findings and recommendations are submitted to the U.S.
District Court Judge presiding over this case under 28 U.S.C.
§ 636(b)(1)(B) and Rule 304 of the Local Rules of
Practice for the United States District Court, Eastern
District of California. Within 14 days of the service of the
findings and recommendations, petitioner may file written
objections to the findings and recommendations with the court
and serve a copy on all parties. That document must be
captioned “Objections to Magistrate Judge’s