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Brim v. People

United States District Court, C.D. California

February 10, 2017

BRIAN KEITH BRIM, [1]Petitioner,
v.
PEOPLE OF STATE OF CALIFORNIA, Respondent.

          MEMORANDUM OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND DISMISSING ACTION WITH PREJUDICE

          JEAN ROSENBLUTH U.S. MAGISTRATE JUDGE.

         On July 13, 2016, Petitioner constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody and accompanying memorandum of points and authorities.[2] Petitioner is actually in federal custody (see Pet. at 1), [3] but his Petition challenges his 1988 conviction in Los Angeles County Superior Court by guilty plea for possessing a controlled substance for sale (id.). Petitioner subsequently filed an “Election Regarding Consent to Proceed Before a United States Magistrate Judge, ” indicating that he voluntarily consented to “have a United States Magistrate Judge conduct all further proceedings in this case, decide all dispositive and non-dispositive matters, and order the entry of final judgment.” On November 30, 2016, Respondent also consented to proceed before the undersigned.

         On November 29, 2016, Respondent filed a motion to dismiss the Petition on numerous grounds, including that it was untimely by nearly two decades. On December 15, 2016, Petitioner filed opposition to the motion. Respondent did not file a reply.

         For the reasons set forth below, the Court grants Respondent's motion to dismiss the Petition as untimely. It therefore does not address Respondent's other arguments.[4]

         BACKGROUND

         On June 30, 1988, Petitioner pleaded guilty to possessing for sale a controlled substance. (See Pet'r's Mem. P. & A., Ex. B (guilty-plea transcript)); see also Cal. Health & Safety Code § 11351. He was sentenced to two years' imprisonment. (See Lodged Doc. 1, Ex. 1 (abstract of judgment and sentencing transcript).) He did not appeal (Pet. at 1), [5] and on March 28, 1990, he completed serving his sentence and began a 14-month federal sentence (Lodged Doc. 4 at 7; Lodged Doc. 1, Ex. 1). On April 26, 1996, he was convicted in federal court of various drug offenses and was later sentenced to life in prison. United States v. Brim, No. SACV 93-cr-0098-LHM (C.D. Cal. filed July 26, 1993). His federal life sentence was apparently enhanced because of his drug convictions in this case. (See Lodged Doc. 1, Ex. 4 (portion of federal presentence report showing criminal-history- points calculation based on prior convictions); Lodged Doc. 7 at 8 (transcript of hearing on motion to vacate 1988 plea, noting that “two state convictions” were used to enhance federal sentence).)

         Beginning in 2001, Petitioner filed a series of habeas petitions and other pleadings in state court challenging his 1988 convictions and sentence. (See Lodged Docs. 3, 6, 7 at 5 (superior court noting that Petitioner had challenged his 1988 guilty plea five times since 2001), 9; see also Mot. Dismiss at 8-9 (laying out history of such pleadings).)[6] His most recent round of such petitions alleged that he deserved to be resentenced under California's Proposition 47, codified at Penal Code section 1170.18, which gives state-court judges discretion to reduce certain felony convictions to misdemeanors. (See Lodged Docs. 9, 10, 11.) The state superior court ruled that Petitioner was ineligible for resentencing under section 1170.18 because possession-with-intent-to-sell convictions are statutorily barred from being reduced to misdemeanors. (See Lodged Doc. 9.) The court of appeal found that the superior court “properly denied” Petitioner's petition for resentencing (Lodged Doc. 10 at 2 (citing § 1170.18(b))), and the state supreme court summarily denied review (Lodged Doc. 12).

         PETITIONER'S CLAIMS

         I. The trial court failed to inform Petitioner of the nature of the crime to which he pleaded guilty. (Pet. at 4.)

         II. The court's participation in the “plea hearing” violated Federal Rule of Criminal Procedure 11. (Id.)

         III. No factual basis for the guilty plea existed. (Id. at 5.)

         IV. Petitioner's guilty plea was “ambiguous.” (Id.)[7]

         DISCUSSION

         I. The Petition Is Untimely and Must Be Dismissed on that Basis

         A. Applicable Law

         The Antiterrorism and Effective Death Penalty Act sets forth a one-year limitation period for filing a federal habeas petition and specifies that the ...


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