Jacobs v. Davey, Case No. 1:11-cv-00934-AWI-SKO-HC

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtSheila K. Oberto UNITED STATES MAGISTRATE JUDGE
Decision Date08 December 2014
PartiesGEORGE E. JACOBS, IV, Petitioner, v. DAVE DAVEY, Warden, Respondent.
Docket NumberCase No. 1:11-cv-00934-AWI-SKO-HC

GEORGE E. JACOBS, IV, Petitioner,
DAVE DAVEY, Warden, Respondent.

Case No. 1:11-cv-00934-AWI-SKO-HC


December 8, 2014





Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is the petition, which was filed on June 9, 2011.

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I. Jurisdiction and Order Substituting Respondent

Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

The challenged judgment was rendered by the Superior Court of the State of California, County of Kings (KCSC), located within the jurisdiction of this Court. 28 U.S.C. §§ 84(b), 2254(a), 2241(a), (d). Further, Petitioner claims that in the course of the proceedings resulting in his conviction, he suffered violations of his constitutional rights. Accordingly, the Court concludes that it has subject matter jurisdiction over the action pursuant to 28 U.S.C. §§ 2254(a) and 2241(c)(3), which authorize a district court to entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. - ,-, 131 S.Ct. 13, 16 (2010) (per curiam).

An answer was filed on behalf of Respondent Connie Gipson, Warden of the California State Prison at Corcoran, California (CSP-COR), who had custody of Petitioner when the answer was filed. (Ans., doc. 27 at 6.) However, reference to the official website of the California Department of Corrections and Rehabilitation (CDCR)1

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shows that presently the warden of the CSP-COR is no longer Connie Gipson but rather is Dave Davey.

In naming Warden Susan Hubbard in the petition, Petitioner named his custodian at the time, a person who had custody of Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules). See, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Accordingly, the Court concludes it has jurisdiction over the person of the Respondent. However, in view of the fact that the warden at CSP-COR is now Dave Davey, it is ORDERED that Dave Davey, Warden of the California State Prison at Corcoran, is SUBSTITUTED as Respondent pursuant to Fed. R. Civ. P. 25.2

II. Order Denying Petitioner's Request for the Appointment of Counsel

Petitioner requests that counsel be appointed. (Doc. 31, 3.)

There currently exists no absolute right to the appointment of counsel in non-capital, federal habeas corpus proceedings. McFarland v. Scott, 512 U.S. 849, 857 n.3 (1994); Miranda v. Castro, 292 F.3d 1063, 1067 (9th Cir. 2002); Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir.), cert. denied, 358 U.S. 889 (1958). The Sixth Amendment right to counsel does not apply in habeas corpus actions,

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which are civil in nature. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986); Anderson, 258 F.2d at 481.

However, a Magistrate Judge may appoint counsel at any stage of a habeas corpus proceeding if the interests of justice require it. 18 U.S.C. § 3006A; Rule 8(c) of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules). A district court evaluates the likelihood of a petitioner's success on the merits and the ability of a petitioner to articulate his claims pro se in light of the complexity of the legal issues involved. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

A district court abuses its discretion in denying an indigent's request for appointed counsel pursuant to 18 U.S.C. § 3006A(g) if appointment of counsel is necessary to prevent due process violations, such as when the case is so complex that due process violations will occur absent the presence of counsel. Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir. 1993) (citing Chaney, 801 F.2d at 1196). Factors considered in various cases include the number of claims, the nature and substance of the issues (difficulty, novelty, need for further briefing), the stage of the proceedings, pertinent circumstances concerning the condition of the petitioner (mental health issues, diagnoses, treatment, medical history), and the petitioner's ability to proceed with the action.

Here, Petitioner's case is not complex, and the issues are not novel or difficult. No circumstances warrant a conclusion that the interests of justice require the appointment of counsel. Accordingly, it is ORDERED that Petitioner's request for the appointment of counsel is DENIED.

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III. Procedural and Factual Summary

A. Procedural Background

At a jury trial Petitioner was convicted of three counts of battery by a confined person on a non-confined person in violation of Cal. Pen. Code § 4501.5 (counts 1-3), possession of a sharp instrument by a confined person in violation of Cal. Pen. Code § 4502 (count 4), and two counts of assault on a correctional officer with a deadly weapon and by force likely to produce great bodily injury in violation of Cal. Pen. Code § 4500 (counts 5 and 6). The jury also found true allegations that Petitioner used a deadly weapon in commission of counts 1 and 2 within the meaning of Cal. Pen. Code § 12022(b)(1), Petitioner had four prior serious felony convictions within the meaning of Cal. Pen. Code § 667(a)(1), and he had suffered four prior "strike" convictions within the meaning of Cal. Pen. Code §§ 667(b)-(i) and 1170.12(a)-(d). Petitioner represented himself at trial, but the court appointed counsel, at Petitioner's request, to assist him at the sentencing proceeding. Petitioner was sentenced to an indeterminate term of fifty-four years to life plus a determinate term of forty years. (LD 1, LD 5 at 1-3.)3

The Court of Appeal of the State of California, Fifth Appellate District (CCA) affirmed the judgment on April 9, 2010 (LD 5), and the California Supreme Court (CSC) denied Petitioner's petition for review summarily on June 17, 2010 (LD 6, LD 7).

On June 9, 2011, Petitioner filed the initial petition for writ of habeas corpus in this Court. After various proceedings involving stays precipitated by Petitioner's subsequent exhaustion of state

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court remedies, the action now proceeds on the original petition with the exception of state law claims that were dismissed by the Court on March 27, 2012. An answer was filed by Respondent on June 19, 2012, and a traverse was filed by Petitioner on August 22, 2012.

B. Factual Summary

Because Petitioner challenges the sufficiency of the evidence to support his conviction of battery of Officer Scaife as well as the constitutionality of what he characterizes as an excessive sentence, the facts will be set forth in full.

In a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct; the petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. 28 U.S.C. § 2254(e)(1); Sanders v. Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004). This presumption applies to a statement of facts drawn from a state appellate court's decision. Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009). The following statement of facts is taken from the opinion of the CCA in People v. George Jacobs, case number F057101, filed on April 9, 2010.


One morning, Correctional Officer Matthew Oliveira was collecting the breakfast trays from inmates at Corcoran State Prison. The cell doors on the lock-down unit where Jacobs was housed have a small port that an officer must unlock to retrieve the tray. Jacobs, who was the only inmate in his cell, passed his tray through the port. After Oliveira disposed of the tray, he turned to close the port. As he did so, he was "speared in the right shoulder." The spear, which was three feet long with a one-and-one-half inch tip, appeared to be constructed of rolled-up paper and the tip appeared to be sharp metal. The spear contacted Oliveira at the upper part of his

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right shoulder just above the armpit. Oliveira was wearing his uniform jumpsuit and a stab resistant vest. The spear's metal tip probably would have struck Oliveira's throat had he not leaned to his left. The metal tip did not reach his skin, although it left a small hole in the shoulder area of the jumpsuit. Jacobs continued his stabbing motion with the spear. As Oliveira reached for his pepper spray, he was hit twice in his left hip area with a yellow liquid that smelled like urine. The liquid, which was in white state-issued paper cups, was thrown from inside the cell through the port.

Correctional Sergeant Dennis Scaife and Correctional Officer Todd Cogdill came to assist Oliveira in response to an alarm. Scaife ordered Jacobs to "cuff up," which required Jacobs to place his back to the cell door and put his hands where they could be cuffed through the door's port. Jacobs nodded as though he understood. As Scaife approached the door to place the cuffs on Jacobs, he saw a flash of a three foot long spear-like weapon thrust in his direction. The weapon appeared to

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