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Brice Anthony Peeler v. T. Kabban-Miller

June 14, 2012

BRICE ANTHONY PEELER, PETITIONER,
v.
T. KABBAN-MILLER, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Introduction

Petitioner, a state prisoner proceeding pro se, has filed a petition pursuant to 28 U.S.C. § 2254. He seeks a reduction in his sentence based on recent changes to state law made after his sentence was final, arguing that such reductions are mandated by the Equal Protection Clause of the Fourteenth Amendment. Respondent has answered the petition. For the reasons given below, the undersigned recommends that the petition be DENIED.

Background

The following excerpt is taken from the Probation Officer's Presentence and Violation of Parole Report, filed July 15, 2009, and attached as an unnumbered exhibit to respondent's answer:

On May 26, 2009, Nevada County Sheriff's Deputy HIGHSMITH was dispatched to Sierra Nevada Memorial Hospital in Grass Valley for a report of a stabbing. The victim, DONNIE THOMPSON, was in the emergency room with a two-inch long, and three-quarter inch deep stab wound to his neck and another laceration to his left inner knee. The victim relayed to HIGHSMITH that he was at NICHOLE DICKINSON's trailer, along with two other people, and at approximately 2:00 a.m., the defendant, BRICE PEELER, entered the trailer and ordered everyone to get on the ground or he was going to "kill them." He said the defendant, wearing camouflage pants and sweatshirt, then came at him with a knife and cut him on the left side of his neck. The victim said he ran into the kitchen and fell onto his back as the defendant was "slashing" at him with the knife. The victim reported he attempted to defend himself with his legs and was cut on the inside of his knee. The defendant then ordered the victim to "empty his pockets" and the victim gave the defendant $400.00. The victim reported the defendant then said "give me your shoes. I gave you my shoes and you never paid me back." The defendant gave the victim a towel and told him to put pressure on his neck or he was "going to die." The victim retreated out the back of the trailer and into the woods and heard the defendant say, "I'm going to have to kill him. He's going to rat on me." The victim reported DICKINSON found him hiding in the woods and took him to the hospital and that throughout the incident, the defendant was yelling "I'm going to kill you" and "if you tell, I'll kill you." He said the knife was a "pocketknife with an approximate five to six-inch blade." ....

Later that evening, a search warrant was issued for a residence in Olivehurst, in Yuba County, where the defendant was thought to be residing. Deputies from the Nevada County Major Crimes Unit, Narcotics Unit and District Attorney's Office, as well as deputies from the Yuba County Sherriff's Office and the Yuba County SWAT team arrived at the home. The Yuba County SWAT team threw a "flash bang" devise [sic] into the front yard, identified themselves, and then entered the residence while Nevada County agents performed outer perimeter security. Deputies entered the home and arrested the defendant without incident. A search of the home found a camouflaged jacket and backpack and a black nylon pouch that contained two glass pipes, a glass vile and zip lock baggies, both containing white residue, and a plastic baggie containing marijuana cola.[*fn1 ] A canvas bag located in a lower shelf of a bookcase in the bedroom closet contained 13 different style knives.

Doc. No. 14 at 9-11.

Despite the assault with a deadly weapon (at the very least), petitioner pled no contest to violations of California Penal Code ("CPC") 422, Criminal Threats, and CPC 487(c), Grand Theft property from a person in one case, and, drug possession for sale in another case. On July 22, 2009, petitioner was sentenced to a prison term of 76 months by the Superior Court of the State of California. Petitioner's aggregate, stipulated sentence included three years on the drug possession charge, two one year enhancements connected to the drug charge, and a one-third middle term sentence of 8 months on the criminal threat charge, and a one-third middle term sentence of 8 months on the grand theft charge, to be served consecutively with terms on other charges. See Doc. No. 14 at 28 (Minutes), 30 (Abstract of Judgment). Petitioner was given credit for time actually served, as well as half-time conduct credits. See Doc. No. 14 at 25:24-26:2; 28; 31. Petitioner did not appeal the sentence.

On September 12, 2010, petitioner filed a petition for writ of habeas corpus with the California Superior Court, Nevada County.*fn2 See Lodged Doc. No. 1. Petitioner made two arguments, based upon the newly-passed "Senate Bill SBxxx18": (1) that the property threshold for grand theft under California Penal Code § 487 had been raised from $400 to $950, and so his grand theft conviction was now only a misdemeanor; and (2) that the calculation of credit for time served made pursuant to California Penal Code § 4019 now allowed prisoners to receive a full day's credit for each day served, as opposed to the half-time rule in effect at the time petitioner was sentenced. Id.

The Superior Court denied the petition on September 17, 2010. See Lodged Doc. 3, Ex. A. As to the theft allegation, the court found that there was nothing in the legislative history to indicate that the threshold change in CPC § 487 was retroactive, and noted that it had previously denied petitioner's motion for resentencing, which petitioner had made using this same argument. Id. As to the credits allegation, the court noted that the retroactivity of CPC § 4019 was before the California Supreme Court, and so denied petitioner's motion without prejudice to renewal after the Supreme Court's decision. Id.

On October 10, 2010, petitioner filed a petition for writ of habeas corpus with the California Court of Appeal, Third Appellate District, raising the same two arguments he had raised in the Superior Court. See Lodged Doc. No. 2. On October 21, 2010, the Court of Appeal denied the petition, citing In re Steele, 32 Cal.4th 682, 692 (2004), and In re Hillery, 202 Cal.App.2d 293 (1962).*fn3

On November 22, 2010, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. See Lodged Doc. No. 3. Petitioner raised the two arguments he had made in the Superior Court and the Court of Appeal, and additionally argued that he was entitled to benefit from the changes in the law under the Fourteenth Amendment of the United States Constitution. Id. On June 15, 2011, the California Supreme Court denied the petition without citation. See Doc. No. 1, Ex. C.

Petitioner filed the current petition on June 23, 2011(again using the date of service as the date of filing), arguing that he is entitled to a retroactive reduction of his sentence, based upon the new laws regarding grand theft thresholds and credits, and upon his equal ...


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