Volpicelli v. Palmer

Filing 56

ORDER granting 50 Motion for Leave to File Excess Pages and denying 52 Motion to Take Judicial Notice. Signed by Judge Larry R. Hicks on 9/30/13. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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FERRILL JOSEPH VOLPICELLI,

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Petitioner,

3:10-cv-00005-LRH-VPC

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vs.

ORDER

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JACK PALMER, et al.,
Respondents.

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This habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner’s motion (#50)
for waiver of page limitation and motion (#52) to take judicial notice.

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The motion to waive the page limitation for petitioner’s reply will be granted. Nothing in the

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Court’s order signifies tacit acceptance of any representation made by petitioner in the motion. The

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Court simply is allowing petitioner to exceed the page limit in the reply that already is on file.

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In the motion to take judicial notice, petitioner initially requests that the Court “take Judicial

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Notice of his imprisonment record with specific reference to his current sentence structure in case

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CR03-1263.” In his concluding prayer, he asks the Court to “order a reversal of the life sentence &

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adjudication of Habitual Criminal Status, as well as order his immediate release from custody.”

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Basically, petitioner is seeking to have it declared that he has expired the sentence that he maintains that

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he should have been serving if his adjudication as a habitual criminal were overturned.

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The motion will be denied. First, petitioner is not seeking judicial notice of facts that may be

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judicially noticed under Rule 201(b) of the Federal Rules of Evidence. Second, petitioner is seeking

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judicial notice of an alleged fact that is not even relevant at this point and may never be. Petitioner

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currently is subject to a presumptively valid state court judgment of conviction that adjudicates him as

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a habitual criminal and sentences him to life imprisonment. That judgment and sentence remains

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presumptively valid unless and until this Court or a reviewing court makes a contrary determination.

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What petitioner’s sentence structure otherwise is, should be, or might be and/or the relief to which he

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might be entitled if that judgment and sentence were overturned is an issue that might never be reached.

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Third, the relief that petitioner seeks by the motion, immediate release from confinement, cannot be

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obtained on a motion for judicial notice. The Court is not going to resolve disputed issues of fact and/or

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law on a motion for judicial notice. The Court will resolve the issues in this case on the pleadings

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currently on file, not on a frivolous motion for judicial notice.

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The pleadings and briefing in this case are closed. Petitioner may not seek to obtain a merits

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determination via motions filed after the reply. No further submissions will be entertained prior to a

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final decision on the merits. Any further frivolous motions will result in a referral for consideration of

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possible forfeiture of sentencing credits under N.R.S. 209.451(1)(d).

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IT THEREFORE IS ORDERED that on petitioner’s motion (#50) for waiver of page limitation

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is GRANTED, such that petitioner is granted leave to exceed the page limit with regard to the reply

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(#51) already on file.

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IT FURTHER IS ORDERED that petitioner’s motion (#52) to take judicial notice is DENIED.

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DATED this 30th day of September, 2013.

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_________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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