United States District Court, C.D. California
MEMORANDUM OPINION AND ORDER GRANTING
RESPONDENT'S MOTION TO DISMISS AND DISMISSING ACTION WITH
ROSENBLUTH U.S. MAGISTRATE JUDGE.
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. Petitioner is actually in federal custody
(see Pet. at 1),  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
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.
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.
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),  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
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).) 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).
trial court failed to inform Petitioner of the nature of the
crime to which he pleaded guilty. (Pet. at 4.)
court's participation in the “plea hearing”
violated Federal Rule of Criminal Procedure 11.
factual basis for the guilty plea existed. (Id. at
Petitioner's guilty plea was “ambiguous.”
The Petition Is Untimely and Must Be Dismissed on that
Antiterrorism and Effective Death Penalty Act sets forth a
one-year limitation period for filing a federal habeas
petition and specifies that the ...