Malone v. Hutoon

Filing 6

*** DISREGARD - DOCUMENT FILED IN WRONG CASE*** ORDER OF DISMISSAL. Signed by Judge Claudia Wilken on 12/15/08. (scc, COURT STAFF) (Filed on 12/15/2008) Modified on 12/15/2008 (scc, COURT STAFF).

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. JAMES D. HARTLEY, Warden, Respondent. JAMES SEEGARS, Petitioner, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. C 08-03940 CW (PR) ORDER OF DISMISSAL

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Petitioner, a state prisoner, filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and an application for leave to proceed in forma pauperis (IFP). Petitioner has filed a previous petition for a writ of habeas corpus with this Court, challenging the same conviction and sentence. See Case No. C 07-3139 MJJ (PR). Specifically, he

alleged that his 1989 sentence violated his Sixth Amendment right to a jury trial because the trial judge imposed the "upper term" following a jury verdict. On July 31, 2007, Judge Martin J.

Jenkins dismissed the petition without prejudice to refiling once all state court post-conviction challenges to Petitioner's conviction and sentence were completed, and all claims Petitioner wished to raise in federal court were presented to the California Supreme Court. See July 31, 2007 Order in Case No. C 07-3139 MJJ

(PR) at 1-2 (citing Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983)). Petitioner filed a motion objecting to the dismissal,

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stating that his pending habeas petition in the California Supreme Court sought production of a transcript. On September 12, 2007,

Judge Jenkins reviewed Petitioner's objection and concluded that the rule in Sherwood did not apply. Case No. C 07-3139 MJJ (PR) at 1. See Sept. 12, 2007 Order in

However, Judge Jenkins denied

the motion, and found the dismissal appropriate for another reason, namely that the petition failed to state a cognizable claim for relief: As Apprendi1 does not apply retroactively to petitioner's 1989 sentence, he may not challenge his sentence on the basis of the Apprendi rule in a federal habeas petition. Consequently, the petition fails to state a cognizable claim for federal habeas relief. Id. at 2-3 (footnote added). Petitioner appealed the dismissal and On

filed a motion for a certificate of appealability (COA).

November 7, 2007, Judge Jenkins denied Petitioner's motion for a COA. On June 20, 2008, the Ninth Circuit Court of Appeals denied

his motion for a COA. In the present petition, Petitioner raises the same right to a jury trial claim based on the Apprendi line of cases. For the

reasons explained in Judge Jenkin's September 12, 2007 Order denying Petitioner's motion objecting to the dismissal, the petition is DISMISSED without prejudice because it fails to state a cognizable claim for federal habeas relief. Based solely on Petitioner's lack of financial resources, his application to proceed IFP (docket no. 3) is GRANTED. Apprendi v. New Jersey, 530 U.S. 466, 488-90 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.").
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The Clerk of the Court shall enter judgment in accordance with this Order, terminate all other pending motions, and close the file. IT IS SO ORDERED. DATED: 12/15/08 CLAUDIA WILKEN United States District Judge

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James Seegars E-16635 Avenal State Prison 1 Kings Way P.O. Box 9 Avenal, CA 93204 JAMES SEEGARS, Plaintiff, v.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV08-03940 CW CERTIFICATE OF SERVICE

JAMES D HARTLEY et al, Defendant. /

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on December 15, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Dated: December 15, 2008

Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

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