The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff has consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c).
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's prison trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
By order filed January 7, 2011, plaintiff's complaint was dismissed for failure to state a cognizable civil rights claim, and plaintiff was provided the option to voluntarily dismiss this action, or, was granted leave to file an amended complaint in the unlikely event plaintiff could demonstrate his 1986 or 1989 prior convictions were reversed, expunged, or called into question by a federal writ of habeas corpus.*fn1 Plaintiff has now filed an amended complaint.
Plaintiff was previously informed of this court's obligation to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
In his amended complaint, plaintiff attempts to demonstrate that his 1986 or 1989 prior convictions have been invalidated, allegedly demonstrating his compliance with Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), such that this action may continue.
A brief synopsis of the underlying proceedings follows. 1. On July 3, 2003, plaintiff was charged with an information alleging assault by means of force likely to produce great bodily injury, and battery with serious bodily injury, and it was further alleged that plaintiff had sustained three strikes under California's Three Strikes law based on plaintiff's three prior serious felony convictions and six prior prison terms. (Dkt. No. 11 at 2.)
2. On October 6, 2003, plaintiff pled nolo contendere to battery with serious bodily injury with an enhancement that he personally inflicted great bodily injury, and an admission of a prior serious felony conviction, in San Joaquin County Superior Court Case No. SF087963A. (Dkt. No. 1 at 14; 11 at 2.) The prosecution moved to dismiss two strikes, two serious felony prior convictions, and the six prior prison terms. (Dkt. No. 11 at 3.) Pursuant to the plea agreement, plaintiff was sentenced to twelve years in state prison.
3. On April 29, 2005, the California Third District Court of Appeal reversed plaintiff's 2003 conviction and remanded the case to the trial court. (Dkt. No. 11 at 29-33.)
4. On May 12, 2006, the trial court addressed scheduling and plaintiff's counsel raised the issue of plaintiff's competence to stand trial. (Dkt. No. 1 at 17.) The prosecutor revoked the plea offer.*fn2 (Id. at 18.)
5. Plaintiff's case went to jury trial, and on May 9, 2007, plaintiff was convicted of assault using force likely to produce great bodily injury and battery inflicting serious bodily injury. (Dkt. No. 11 at 39.) The jury also found true an enhancement allegation that as to each offense defendant inflicted great bodily injury under circumstances involving domestic violence. (Id.)
6. On May 10, 2007, plaintiff was advised of his right to a jury trial on his prior convictions. (Dkt. No. 11 at 41.) Plaintiff waived his right to a jury trial on the prior convictions. (Id.) After a subsequent bench trial, the court found true the enhancement allegations that plaintiff had two prior convictions of serious or violent felony offenses. People v. Jones, 2008 WL 3878347 (Cal. App. 3 Dist. Aug. 22, 2008); Dkt. No. 11 at 42-43.*fn3 Plaintiff was sentenced to 25 years to life in state prison. (Dkt. No. 11 at 47.)
In Heck v. Humphrey, the Supreme Court held that in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.
Heck v. Humphrey, 512 U.S. at 486-87. It is well settled law in California that the striking of a sentence enhancing allegation of a prior conviction has no preclusive effect notwithstanding a determination that it was constitutionally invalid. Gonzalez v. Municipal Court, 32 Cal.App.3d 706, 711, 108 Cal.Rptr. 612, 617 (1973). Motions to strike such an allegation "do not vacate the underlying conviction. . . ." People v. Sumstine, 36 Cal.3d 909, 920, 206 Cal.Rptr. 707, 714 (1984). "The purpose of a motion to strike is to challenge only the present effect of the prior conviction." Id. at 921. If a California trial court grants a motion to strike the allegation of a prior conviction, it cannot be used to enhance the punishment in that criminal proceeding. People v. Allheim, 48 Cal.App.3d Supp. 1, 5-6, 121 Cal.Rptr. 448, 451 (1975). However, if the defendant is subsequently prosecuted on an ...