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Glass v. Wengler

United States District Court, Ninth Circuit

December 30, 2013

JIMMY THOMAS GLASS, Petitioner,
v.
WARDEN TIM WENGLER, Respondent.

MEMORANDUM DECISION AND ORDER

EDWARD J. LODGE, District Judge.

Pending before the Court in this habeas corpus matter is Respondent's Motion for Partial Summary Dismissal (Dkt. 6). Petitioner Jimmy Thomas Glass has responded to the Motion (Dkt. 9), and Respondent has filed a reply (Dkt. 10). The Court takes judicial notice of the records from Petitioner's state court proceedings, lodged by Respondent on March 14, 2013. See Fed.R.Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006).

Having carefully reviewed the record, including the state court record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that the decisional process would not be significantly aided by oral argument. Therefore, the Court shall decide this matter on the written motions, briefs and record without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order granting the Motion for Partial Summary Dismissal and dismissing with prejudice Claims One, Two, and Four of the Petition.

FACTUAL BACKGROUND

Petitioner was convicted in October 2004 of enticing a child over the Internet. (State's Lodging A-1 at 72.) The facts relating to Petitioner's crime are set forth in the decision of the Idaho Court of Appeals in Petitioner's direct appeal:

During the week of July 15, 2004, detectives from the Ada County Sheriff's Office conducted an Internet sting operation to locate individuals enticing children into sexual activity over the Internet. Two officers posing as children under the age of sixteen were online at the same time for approximately eight hours a day. One day, Detective Kenneth Smith logged into a Yahoo... chat room labeled "romance" and posed as a fifteen-year-old girl with the screen name "lisa200215ncal." The user profile for that screen name identified "Lisa" as a high school sophomore from California who was currently in Boise visiting her father.
After Detective Smith logged into the chat room, other individuals already signed into the same chat room were able to see Detective Smith's screen name and profile and were able to send private "instant messages" directly to him. Subsequently, he was privately contacted by a person using the screen name "letsgetkinky831." During an ensuing conversation, "lisa200215ncal" indicated that she was a fifteen-year-old female to which "letsgetkinky831" replied, "That's cool." He then asked her to look at the picture on his profile, that of a man from the waist down, naked and masturbating, and to tell him if it was "ok." The following conversation then took place:
Lisa200215ncal: yea looks ok
Letsgetkinky831::D [laughter]
Letsgetkinky831: maybe you'd let me undress in front of you?
Lisa200215ncal: maybe
Letsgetkinky831: well what do you have in mind then?
Lisa200215ncal: I don't know didn't really have a plan
Letsgetkinky831: well then let me start by coming over and taking my clothes off
Letsgetkinky831: play with it in front of you, get it hard
Letsgetkinky831: see what comes up?
Lisa200215ncal: yea might be able to do that
Letsgetkinky831: cool
Letsgetkinky831: when?
Letsgetkinky831: Lisa?
Letsgetkinky831: what's wrong now?
Lisa200215ncal: think
Letsgetkinky831: ok
Lisa200215ncal: so ur serious
Letsgetkinky831: i'm dead serious
Letsgetkinky831: i'll undress, if you don't like, I'll leave, k
Lisa200215ncal: well how far do u want to go
Letsgetkinky831: only as far as you want to go
Lisa200215ncal: so if I said no sex u would be good with that
Letsgetkinky831: yes
Letsgetkinky831: cool then?
....
Letsgetkinky831: i need to go to work today
Lisa200215ncal: when
Letsgetkinky831: at 2
Letsgetkinky831: so I'd have to do this soon
Lisa200215ncal: oh so will that be enough time
Letsgetkinky831: sure will if ya let me come over now
Letsgetkinky831::D
Lisa200215ncal: what part of town do you live in
Letsgetkinky831: north side U?
Lisa200215ncal: well im not really sure do u know where Fairview is
Letsgetkinky831: i do
Lisa200215ncal: ok
Letsgetkinky831: what's the address then?
Lisa200215ncal: [address ...

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