Perkins v. Martinez

          FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.

         Petitioner is a state prisoner, proceeding without counsel, with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on November 20, 2013, in the Sacramento County Superior Court on charges of carjacking, second degree robbery and possession of a firearm by a felon. He seeks federal habeas relief on the grounds that the trial court abused its discretion when it denied his motion to dismiss his prior “strike” conviction at the sentencing proceedings in the interests of justice. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner’s application for habeas corpus relief be denied.

         I. Background

         In its unpublished memorandum and opinion affirming petitioner’s judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

A jury convicted defendant Dante Perkins of carjacking, second degree robbery and possession of a firearm by a felon. The trial court found true an allegation that defendant had a prior strike conviction, denied defendant's request to dismiss the prior strike (Pen. Code, § 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497), and sentenced defendant to 35 years eight months in state prison.

Defendant now contends the trial court abused its discretion in denying his request to dismiss the prior strike. Concluding there was no abuse of discretion, we will affirm the judgment.

BACKGROUND

Parris Pruitt pulled his car into the parking lot of Greenhaven Liquor store. His girlfriend and their son remained in the car while Pruitt entered the store to buy cigarettes. Pruitt left the keys in the ignition.

As Pruitt walked back to the car, defendant pointed a handgun at Pruitt's chest. Defendant said: “Don't get in the car. I'll gas you if you open the door.” Pruitt understood the word “gas” to mean “shoot.” Defendant took the cell phone from Pruitt's hand and got into the car. Pruitt ran back into the liquor store to call 9-1-1. Defendant pointed the gun at Pruitt's girlfriend and told her to get out of the car or he would shoot up the car. The girlfriend and child left. Defendant subsequently sold Pruitt's car.

In denying defendant's request to dismiss the prior strike, the trial court considered, among other things, defendant's prior criminal history and noted that his prior strike conviction (a 2008 robbery) was a violent felony and was relatively recent.

Defendant was born in 1991; he was 21 years old at the time of the instant offenses. His prior record included sustained juvenile delinquency petitions for a misdemeanor vehicle theft in 2006, two felony vehicle thefts in 2008, and the 2008 robbery. He also had adult convictions for misdemeanor possession of methamphetamine in 2009, resisting arrest in 2010, and accessory to burglary in 2011.

In the 2008 robbery, defendant and a cohort confronted a Round Table Pizza employee making a pizza delivery. The cohort pointed a gun at the victim and demanded money. When the victim resisted, defendant and his cohort punched and kicked the victim. The victim told the attackers they could find money in the victim's car; defendant and his cohort took $300 from the victim's car and fled in another vehicle. Defendant later admitted the crime and admitted membership in the Guttah Boyz gang.

People v. Perkins, No. C072924, 2013 WL 5519372, at *1 (Cal.Ct.App. Oct. 7, 2013).

         After the California Court of Appeal upheld his judgment of conviction, petitioner filed a petition for review in the California Supreme Court. (Resp’t’s Lod. Doc. 5.) The ...