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Brown v. Clark

February 10, 2009

TYRELL T. BROWN, PETITIONER,
v.
KEN CLARK, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Tyrell Brown is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mr. Brown attacks his December 5, 2003 conviction for violation of California Penal Code § 11351.5 in the Sacramento County Superior Court, case no. 03F04345.

II. ISSUE

Mr. Brown claims that the State of California has violated his Fifth Amendment right to be free from double jeopardy.*fn1 Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's petition for habeas corpus relief be denied.

III. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts

On September 4, 2001 Mr. Brown, pursuant to a negotiated agreement, pled no contest to possession of cocaine base for sale and admitted that he had served a prior prison term. Answer, Attachment D at 1. Mr. Brown appealed arguing that an information was never filed and therefore the superior court lacked jurisdiction to pronounce judgment. Id. On February 5, 2003 the California Court of Appeal agreed, reversed that judgment and vacated Mr. Brown's plea. Id. at 6.

On July 2, 2003 the prosecution filed a new complaint containing the exact same allegations as those that resulted in the 2001 no contest plea. Answer, Attachment A at 1. After a jury found Mr. Brown guilty the trial judge sentenced him to nine years in prison. Answer, Attachment B at 2.

B. State Appellate Review

On August 10, 2004 Mr. Brown filed an appeal in the California Court of Appeal, Third Appellate District. Answer, Attachment C at 2. That appeal was denied on March 9, 2005. Answer, Attachment E at 20. Mr. Brown then petitioned the California Supreme Court for review on March 24, 2005. Answer, Attachment E at 2. That petition was denied on May 18, 2005. Answer, Attachment F at 2.

C. State Habeas Corpus Proceedings

Mr. Brown filed six petitions for habeas corpus relief in the Sacramento County Superior Court. Those petitions were filed on:

* May 27, 2004

* April 27, 2005

* June 15, 2005

* August 18, ...


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