Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Otis v. Dobson-Davis

October 20, 2010

LORIE OTIS, PETITIONER,
v.
DOBSON-DAVIS, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

I. Introduction

Petitioner is a state prisoner proceeding without counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges her 2007 conviction on three counts for fraudulent checks, two counts of second degree burglary, one count of receiving stolen property, and one count of petty theft with a prior. Petitioner pled no contest pursuant to a plea agreement. Petitioner was sentenced to thirteen years, eight months in prison. Petitioner raises two claims in her third amended petition, filed May 10, 2010, that her prison sentence violates the Constitution. Both parties have consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c); Dkt. Nos. 12, 23. After carefully considering the record, the undersigned finds the petition should be denied.

II. Procedural History

1. Petitioner timely appealed her conviction. On March 7, 2008, her conviction was affirmed by the California Court of Appeal, Third Appellate District. People v. Otis, 2008 WL 616240 (Cal.App. 3 Dist. 2008).

2. On October 3, 2008, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District, Case No. C060047. The petition was denied without comment on October 9, 2008. (Docket Sheet Lodged by Respondent on August 30, 2010.)

3. On December 2, 2008, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, Case No. S168678. (Lodged by Respondent on August 30, 2010.) On May 20, 2009, the California Supreme Court denied the petition, citing In Re Waltreus, 62 Cal.2d 218 (1965). (Docket Sheet Lodged by Respondent on August 30, 2010.)

4. On April 15, 2010, petitioner filed an amended petition for writ of habeas corpus. (Dkt. No. 16.) On August 27, 2010, respondent filed an answer. Petitioner did not file a reply or a traverse.

III. Facts*fn1

On September 1, 2006, pursuant to a negotiated settlement in Yuba County case No. CRF06335, [petitioner] Lorie Ann Otis pled no contest to two counts of second degree burglary, 15 counts of possession of a forged check, and four counts of receiving stolen property and admitted a prior strike conviction. As part of the settlement, it was agreed that if [petitioner] appeared for sentencing on January 10, 2007, the court would dismiss 15 of the counts and her sentence would be 12 years eight months; however, if she did not appear, she would be exposed to a maximum term of 33 years.

[Petitioner] failed to appear for sentencing and a bench warrant for her arrest was issued.

In February 2007, in Yuba County case No. CRF07112, [petitioner] was arrested and charged with felony theft and with falsely identifying herself to a peace officer. Again pursuant to a negotiated settlement, [petitioner] pled no contest to the felony theft charge conditioned upon her receiving an eight-month consecutive sentence in case No. CRF06335, no strike prior would be alleged, and a separate case (No. 07-41) would be dismissed.

In March 2007, [petitioner] requested that her plea be withdrawn, the public defender was relieved, and separate counsel was appointed to determine whether there was any legal basis for such a motion. After counsel determined there was no basis for [petitioner] to withdraw her plea, the public defender was reappointed. Notwithstanding [petitioner's] failure to appear for sentencing in case No. CRF06335, she was sentenced to the original agreed-upon term of 12 years eight months along with the imposition of restitution fines of $10,000 in accord with Penal Code sections 1202 .4 and 1202.45. In case No. CRF07112, she received the agreed-upon eight-month term consecutive to the 12-year eight-month term and restitution fines of $200 imposed in accord with Penal Code sections 1202.4 and 1202.45.

FACTUAL BASIS FOR PLEAS IN CASE NO. CRF06335

On March 10, 11 and May 1, 2006, [petitioner] fraudulently completed and passed several checks stolen from various persons. On May 8, 2006, a search of [petitioner's] residence disclosed additional stolen checks, many of which had been fraudulently completed by [petitioner]. [Petitioner] had been convicted of first degree burglary in Sutter County on June 25, 1997.

FACTUAL BASE FOR PLEA IN CASE NO. CRF07112

From February 10 to 12, 2007, [petitioner] was in possession of mail which had been stolen from mailboxes of several individuals. (People v. Otis, 2008 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.