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    Jacobs v. Ulibarri, 10th Cir. (2006)

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    Shawn Jacobs, a state prisoner, filed a habeas corpus petition challenging his 1996 murder conviction on the grounds that his 1992 convictions for receiving stolen property and possession of a firearm were invalid. The district court rejected his petition, finding that his 1992 convictions were too old to collaterally attack and that his claims of ineffective assistance of counsel and right to a grand jury indictment lacked merit. The appeals court denied Jacobs' request for a certificate of appealability, agreeing with the district court that he failed to raise any issues that could reasonably be debated.

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    Jacobs v. Ulibarri, 10th Cir. (2006)

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    14 views4 pages
    Shawn Jacobs, a state prisoner, filed a habeas corpus petition challenging his 1996 murder conviction on the grounds that his 1992 convictions for receiving stolen property and possession of a firearm were invalid. The district court rejected his petition, finding that his 1992 convictions were too old to collaterally attack and that his claims of ineffective assistance of counsel and right to a grand jury indictment lacked merit. The appeals court denied Jacobs' request for a certificate of appealability, agreeing with the district court that he failed to raise any issues that could reasonably be debated.

    Original Description:

    Filed: 2006-08-15 Precedential Status: Precedential Docket: 06-2130

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    Shawn Jacobs, a state prisoner, filed a habeas corpus petition challenging his 1996 murder conviction on the grounds that his 1992 convictions for receiving stolen property and possession of a firearm were invalid. The district court rejected his petition, finding that his 1992 convictions were too old to collaterally attack and that his claims of ineffective assistance of counsel and right to a grand jury indictment lacked merit. The appeals court denied Jacobs' request for a certificate of appealability, agreeing with the district court that he failed to raise any issues that could reasonably be debated.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    14 views4 pages

    Jacobs v. Ulibarri, 10th Cir. (2006)

    Uploaded by

    Scribd Government Docs
    Shawn Jacobs, a state prisoner, filed a habeas corpus petition challenging his 1996 murder conviction on the grounds that his 1992 convictions for receiving stolen property and possession of a firearm were invalid. The district court rejected his petition, finding that his 1992 convictions were too old to collaterally attack and that his claims of ineffective assistance of counsel and right to a grand jury indictment lacked merit. The appeals court denied Jacobs' request for a certificate of appealability, agreeing with the district court that he failed to raise any issues that could reasonably be debated.

    Copyright:

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    Download as PDF or read online from Scribd
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    of 4

    F I L E D

    United States Court of Appeals


    Tenth Circuit
    UNITED STATES CO URT O F APPEALS
    TENTH CIRCUIT

    August 15, 2006


    Elisabeth A. Shumaker
    Clerk of Court

    SHAW N LOUIS JACOBS,


    Petitioner-Appellant,

    No. 06-2130

    v.

    (D.C. No. CIV-05-1183 BB/W PL)

    ROBERT ULIBARRI, W arden,


    Southern New M exico Correctional
    Facility; A TTO RN EY G EN ER AL
    FO R TH E STA TE O F N EW M EXICO,

    (D . New M ex.)

    Respondents-Appellees.

    OR DER

    Before KELLY, M cKA Y, and LUCERO, Circuit Judges.

    Appellant is a state prisoner, appearing pro se, who seeks habeas relief
    pursuant to 28 U.S.C. 2254. On February 21, 1992, Appellant entered a nocontest plea to the felony offense of receiving stolen property. The state court
    gave him an eighteen-month suspended sentence. On July 29, 1992, Appellant
    pleaded guilty to possession of a firearm by a felon, receiving stolen property,
    and conspiracy to commit forgery. He was sentenced to a total of three years
    imprisonment for these offenses. His earlier eighteen-month sentence was set to
    run concurrently with his three-year sentence for the later convictions.
    In October 1994, Appellant was released from prison. Three days later he

    killed a high school student. In 1996, he was convicted of murder, kidnaping,


    attempted sexual penetration, and several related offenses. He was sentenced to
    life imprisonment plus 69.5 years. Appellant has filed several appeals and
    petitions in both state and federal court.
    He appeals to this court challenging his 1996 sentence on the ground that
    his 1992 convictions were invalid. Appellant has argued previously in related,
    nevertheless distinct, petitions that he was not a felon when he allegedly
    comm itted his 1992 offense of felon in possession of a firearm because he had not
    then been sentenced for his earlier 1992 stolen property offense. This argument
    was rejected by a state judge and a federal magistrate judge. See Proposed
    Findings and Recommended Disposition, 2 (D .N.M . M ar. 10, 2006).
    The magistrate judge, who construed Appellants arguments generously,
    recommended that Appellants 1992 convictions could no longer be open to direct
    or collateral attack because the time to bring a habeas petition had expired. Id. at
    5. W e agree. In addition, the district court found that even if Appellant could
    demonstrate his entitlement to equitable tolling, his Fifth Amendment claim fails
    because the right to grand jury indictment does not apply to state prosecutions.
    Order Adopting M agistrate Judges Proposed Findings And Recommended
    Disposition, 1 (D.N.M . Apr. 7, 2006) (citing Aldridge v. M arshall, 765 F.2d 63,
    68 (6th Cir. 1985). The district judge also determined that his ineffective
    assistance of counsel claim and his demand for an evidentiary hearing were
    -2-

    without merit. Id. at 1-2.


    Appellant now seeks from this court a certificate of appealability. The
    issues he raises on appeal are identical to those brought before the district court.
    To grant a certificate of appealability, Appellant must make a substantial
    showing of the denial of a constitutional right. 28 U.S.C. 2253(c)(2) (1994).
    To meet this burden, Appellant must demonstrate that reasonable jurists could
    debate whether (or, for that matter, agree that) the petition should have been
    resolved in a different manner or that the issues presented were adequate to
    deserve encouragement to proceed further. Slack v. M cDaniel, 529 U.S. 473,
    484 (2000) (quotation omitted).
    W e have carefully reviewed Appellants brief, the magistrate judges
    recommendations, the district courts disposition, and the record on appeal.
    Nothing in the facts, the record on appeal, or Appellants filing raises an issue
    which meets our standard for the grant of a certificate of appealability. For
    substantially the same reasons set forth by the district court in its order of April 7,
    2006, we cannot say that reasonable jurists could debate whether (or, for that
    matter, agree that) the petition should have been resolved in a different manner.
    Id.

    -3-

    Accordingly, we D EN Y Appellants request for a certificate of


    appealability and DISM ISS the appeal. Appellant's motion for appointment of
    counsel is denied.

    Entered for the Court

    M onroe G. M cKay
    Circuit Judge

    -4-

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