-JFM (HC) Micenheimer v. San Joaquin County Superior Court, No. 2:2011cv01068 - Document 6 (E.D. Cal. 2011)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 7/25/2011 ORDERING that 2 Motion to Proceed IFP is GRANTED; Clerk shall serve a copy of this order and findings and recommendations and copy of the petition for hab eas corpus on Michael Farrell; RECOMMENDING that 1 Petition for Writ of Habeas Corpus filed by Cory Micenheimer be summarily dismissed and that district court decline to issue a certificate of appealability; Matter referred to Judge John A. Mendez. Petitioner may file objections to the findings and recommendations w/i 14 days from date of service. (Waggoner, D)

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-JFM (HC) Micenheimer v. San Joaquin County Superior Court Doc. 6 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 COREY MICENHEIMER, 11 12 13 Petitioner, No. 2:11-cv-1068 JAM JFM (HC) vs. 14 SAN JOAQUIN COUNTY SUPERIOR COURT CASE # SC035537, 15 Respondent. 16 ORDER AND FINDINGS & RECOMMENDATIONS / 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma 19 pauperis. 20 Examination of the in forma pauperis affidavit reveals that petitioner is unable to 21 afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is 22 granted. See 28 U.S.C. § 1915(a). 23 By this action, petitioner seeks to “be released from all penalties and disabilities 24 resulting from San Joaquin County Superior Court Case number: 5C035537.” Exhibits 25 appended to the petition show that the case number refers to a case pursuant to which in 26 November 1984, petitioner entered a plea of guilty to two counts of burglary and one 1 Dockets.Justia.com 1 misdemeanor charge of being under the influenced of a controlled substance. Ex. A to Petition 2 for Writ of Habeas Corpus, filed April 20, 2011, at 215-217.1 For the two burglary counts, 3 petitioner was sentenced to four years in state prison, which was suspended on the condition that 4 petitioner serve three hundred sixty five days in county jail, and a five year term of felony 5 probation. Id. at 219. For the misdemeanor conviction he was sentenced to thirty days in county 6 jail and three years of informal probation. Id. at 222. The record also shows that petitioner is 7 currently serving a sentence of 173 years to life in prison following a 1998 conviction on 8 multiple state criminal charges. Petition at 2. 9 “The federal courts have jurisdiction to issue a writ of habeas corpus to someone 10 who ‘is in custody in violation of the Constitution or laws or treaties of the United States....’ 28 11 U.S.C. § 2241(c)(3).” Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir. 1998). The “in 12 custody” requirement is jurisdictional. Id. 13 Rule 4 of the Habeas Rules requires a judge to summarily dismiss a habeas 14 petition “[i]f it plainly appears from the petition and any exhibits annexed to it that the petitioner 15 is not entitled to relief in the district court.” Rule 4, 28 U.S.C. foll. § 2254. It plainly appears 16 from the petition and the attached exhibits that petitioner is not in custody on the conviction 17 complained of. For that reason, this court lacks jurisdiction over this action and it should be 18 summarily dismissed. 19 Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United 20 States District Courts, “[t]he district court must issue or a deny a certificate of appealability when 21 it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. A certificate of 22 appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a substantial 23 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either 24 issue a certificate of appealability indicating which issues satisfy the required showing or must 25 26 1 The page numbers refer to the numbers at the bottom right hand corner of the exhibit. 2 1 state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b). Where a petition 2 is dismissed on procedural grounds, a certificate of appealability “should issue if the prisoner can 3 show: (1) ‘that jurists of reason would find it debatable whether the district court was correct in 4 its procedural ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition 5 states a valid claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 6 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 7 8 For the reasons set forth in these findings and recommendations, the court lacks jurisdiction over this action. Accordingly, no certificate of appealability should issue. 9 In accordance with the above, IT IS HEREBY ORDERED that: 10 1. Petitioner’s request to proceed in forma pauperis is granted; 11 2. The Clerk of the Court shall serve a copy of these findings and 12 recommendations and a copy of the petition for writ of habeas corpus on Michael Patrick Farrell, 13 Senior Assistant Attorney General; and 14 IT IS HEREBY RECOMMENDED that: 15 1. This action be summarily dismissed; and 16 2. The district court decline to issue a certificate of appealability. 17 These findings and recommendations are submitted to the United States District 18 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 19 days after being served with these findings and recommendations, petitioner may file written 20 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 21 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 22 ///// 23 ///// 24 ///// 25 ///// 26 ///// 3 1 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 2 F.2d 1153 (9th Cir. 1991). 3 DATED: July 25, 2011. 4 5 6 7 8 12 mice1068.156 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4

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