Jackson v. Arnold

Filing 31

FINDINGS and RECOMMENDATIONS recommending that the Court Deny Respondent's Motion to Dismiss 24 , as moot, Dismiss the Petition for a Writ of Habeas Corpus and Decline to Issue a Certificate of Appealability ;referred to Judge O'Neill, signed by Magistrate Judge Jeremy D. Peterson on 09/25/2019. Objections to F&R due 14-Day Deadline(Martin-Gill, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

KENNETH A. JACKSON,

12

Petitioner,

13

v.

14

ERIC ARNOLD,

15

Case No. 1:17-cv-01670-LJO-JDP (HC)
FINDINGS AND RECOMMENDATIONS
THAT COURT DISMISS PETITION FOR
WRIT OF HABEAS CORPUS
ECF No. 16.

Respondent.

16
17

Petitioner Kenneth A. Jackson, a state prisoner without counsel, seeks a writ of habeas

18

corpus under 28 U.S.C. § 2254. ECF 16. Respondent moves to dismiss the case, arguing that the

19

court should abstain from exercising jurisdiction because petitioner is still litigating his direct

20

appeal. ECF No. 24. While respondent’s motion to dismiss was pending, petitioner’s direct

21

appeal ended, and he presented his habeas claims in state court. See People v. Jackson, No.

22

S250471 (Cal. Sup. Ct. Oct. 24, 2018); ECF No. 16 at 42. However, I recommend dismissing the

23

case for a different reason: the petition plainly shows that petitioner is not entitled to relief.

24

Under Rule 4 of the Rules Governing Section 2254 Cases, the judge assigned to the

25

habeas proceeding must examine the habeas petition and order a response to the petition unless it

26

“plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d

27

687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). The rule

28

allows courts to dismiss petitions that are patently frivolous, vague, conclusory, palpably
1

1

incredible, or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). Although this

2

court screened the petition earlier in the case, ECF No. 19, a district court has the inherent

3

authority to reconsider an interlocutory order any time before the entry of judgment. See Smith v.

4

Clark Cty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013); Intamin, Ltd. v. Magnetar Techs. Corp,

5

623 F. Supp. 2d 1055, 1068 (C.D. Cal. 2009). In light of certain facts shown in the exhibits

6

attached to the petition, ECF No. 1 at 44, 46-57, we reconsider our decision to allow petitioner to

7

proceed beyond preliminary review.

8
9

Petitioner 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

10

People v. Jackson, No. F069966, 2018 WL 3434934 (Cal. Ct. App. July 17, 2018). He contends

11

that the government unlawfully arrested him without probable cause. Specifically, he argues that

12

neither the criminal complaint nor the investigation report submitted after his arrest could show

13

probable cause. ECF No. 16 at 26-39.1 According to petitioner, because the government had no

14

probable cause to detain him, his trial counsel should have filed a motion to dismiss the case or

15

pursue other procedural devices to raise the probable cause issue. Id. at 28, 33-35. The criminal

16

complaint and the investigation report attached to the petition show that petitioner cannot obtain

17

habeas relief. Id. at 44, 46-57.
The sole issue here is whether the government had probable cause for petitioner’s arrest.

18
19

“Probable cause to justify an arrest means facts and circumstances within the officer’s knowledge

20

that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the

21

circumstances shown, that the suspect has committed, is committing, or is about to commit an

22

offense.” United States v. Johnson, 913 F.3d 793, 801 (9th Cir. 2019) (quoting Michigan v.

23

DeFillippo, 443 U.S. 31, 37 (1979)) (internal alterations and quotation marks omitted). Courts

24

examine the events leading up to the arrest and assess historical facts from the standpoint of an

25

objectively reasonable police officer. District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018).

26

1

27
28

Petitioner does not explain the circumstances leading up to his arrest. He appears to assume that
only the facts stated in the investigation report prepared a day after the date of his arrest and the
criminal complaint could establish probable cause. See ECF No. 1 at 26-27. In any event, even if
we limit our review to the facts stated in those two documents, petitioner cannot prevail.
2

1

Probable cause requires only a “fair probability” that a crime has been committed. United States

2

v. Johnson, 913 F.3d 793, 801 (9th Cir. 2019) (quoting United States v. Smith, 790 F.2d 789, 792

3

(9th Cir. 1986)). As the Supreme Court has repeatedly stated, probable cause “is not a high bar.”

4

District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (quoting Kaley v. United States, 134 S.

5

Ct. 1090, 1103 (2014)). Documents filed in support of arrest must “be interpreted in a ‘common

6

sense’” way rather than in a “hypertechnical manner.” United States v. Brown, 455 F.2d 1201,

7

1203 (9th Cir. 1972) (quoting United States v. Ventresca, 380 U.S. 102, 109 (1965)).

8
9
10
11
12
13
14
15
16
17
18

Here, 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 fires.
...

19

I declare under penalty of perjury that the foregoing is true and
correct to the best of my information and belief.

20

Id. (emphasis added). The criminal complaint alleges that petitioner and a co-defendant (his

21

wife) agreed to light fires; acquired ignition devices and accelerants; engaged in arson by setting

22

fire to grass, trees, or structures; and observed the progress of fire. Id. at 46-57. Given these

23

allegations in the two challenged documents—particularly the allegation that petitioner admitted

24

to starting the fires—the government had the requisite probable cause.

25

Petitioner argues that neither the report nor the complaint could establish probable cause

26

because the documents: (1) “contain[] no affirmative allegation that the declarant spoke with

27

personal knowledge of the matters contained therein”; (2) do not “indicate any source for the

28

declarant’s belief”; and (3) do not “set forth any other sufficient basis upon which a finding of
3

1

probable cause” could be made. ECF No. 16 at 27. The investigation report does say that

2

Andersen made his statements under penalty of perjury “to the best of [his] information,”

3

identifies the sources of information—including petitioner’s own admission—and the facts stated

4

establish probable cause. Id. at 44. As for the criminal complaint, the government had no

5

obligation to show probable cause in a single document; it could attach documents recounting

6

facts such as those stated in the investigation report to show probable cause. See United States v.

7

Sedaghaty, 728 F.3d 885, 911 (9th Cir. 2013); cf. United States v. Barnes, 895 F.3d 1194, 1200

8

(9th Cir. 2018).

9

In sum, petitioner cannot prevail on his claim that the government lacked probable cause

10

to arrest him. By extension, he cannot prevail on his related claim that his counsel was

11

ineffective in failing to raise the probable cause issue. Petitioner is not entitled to relief.

12

I recommend that the court decline to issue a certificate of appealability. A petitioner

13

seeking a writ of habeas corpus has no absolute right to appeal a district court’s denial of a

14

petition; he may do so only in limited circumstances. See 28 U.S.C. § 2253; Miller-El v.

15

Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases requires a district

16

court to issue or deny a certificate of appealability when entering a final order adverse to a

17

petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th

18

Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a substantial

19

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires a

20

petitioner to show that “jurists of reason could disagree with the district court’s resolution of his

21

constitutional claims or that jurists could conclude the issues presented are adequate to deserve

22

encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord Slack v. McDaniel, 529

23

U.S. 473, 484 (2000). Here, petitioner has not made a substantial showing of the denial of a

24

constitutional right.

25
26
27
28
4

1

Findings and Recommendations

2

I recommend that the court deny respondent’s motion to dismiss, ECF No. 24, as moot,

3

dismiss the petition for a writ of habeas corpus, and decline to issue a certificate of appealability.

4

These findings and recommendations are submitted to the U.S. District Court Judge

5

presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of

6

Practice for the United States District Court, Eastern District of California. Within 14 days of the

7

service of the findings and recommendations, petitioner may file written objections to the

8

findings and recommendations with the court and serve a copy on all parties. That document

9

must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The

10

District Judge will then review the findings and recommendations under 28 U.S.C.

11

§ 636(b)(1)(C).

12
13

IT IS SO ORDERED.

14
Dated:

September 25, 2019

15

UNITED STATES MAGISTRATE JUDGE

16
17
18

No. 202

19
20
21
22
23
24
25
26
27
28
5