United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
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.
unpublished memorandum and opinion affirming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
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).
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.)