Nelson v. Clark

Full title: TARZA R. NELSON, Petitioner, v. KEN CLARK, Respondent

Court: United States District Court, E.D. California

Date published: Mar 5, 2008

1:08-cv-00114 OWW SMS HC (E.D. Cal. Mar. 5, 2008)

Opinion

1:08-cv-00114 OWW SMS HC.

March 5, 2008

ORDER GRANTING PETITIONER'S MOTION FOR JUDICIAL NOTICE OF NINTH CIRCUIT RULING [Doc. 8]

SANDRA SNYDER, Magistrate Judge

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Petitioner filed the instant petition for writ of habeas corpus on January 23, 2008. On January 29, 2008, the Court issued an order directing Respondent to file a responsive pleading.¹ (Court Doc. 5.)

1 A motion to dismiss is currently due on or before March 28, 2008 or an answer is due on or before April 29, 2008. (Court Doc. 5.)

On February 21, 2008, Petitioner filed a motion requesting the Court to take judicial notice of the Ninth Circuit Court of Appeals recent decision in Hayward v. Marshall, 512 F.3d 536 (Jan. 2, 2008). In his motion, Petitioner compares his case both legally and factually to the circumstances present in Hayward. (See Motion.)

DISCUSSION

"A court may take judicial notice of its own records in other cases, as well as the records of an inferior court in other cases." United States v. Wilson, 631 F.2d 118, 119 (9^th Cir. 1980). Fed.R.Evid. § 201(b)(2) permits judicial notice of a fact that is "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."

The Court cannot take judicial notice of factual circumstances in a vacuum. Rather, the facts must be placed in context. As the Court has yet to review the merits of the instant petition, the Court cannot determinate the applicability of the opinion inHayward.² In addition, as noted above, the Court may not take judicial notice of a fact that is subject to reasonable dispute. Fed.R.Evid. § 201(b). The application of the Ninth Circuit's opinion to the circumstances of Petitioner's case, is not "generally known" or "capable of accurate and ready determination." Id.

2 Petitioner is advised that if and when the Court reviews the merits of the petition, Petitioner may argue the applicability of holding in Hayward.

Accordingly, IT IS HEREBY ORDERED that Petitioner's motion for judicial notice is GRANTED in part. The Court hereby TAKES judicial notice of the existence of the Ninth Circuit's recent opinion in Hayward v. Marshall, 512 F.3d 536 (Jan. 2, 2008).

IT IS SO ORDERED.