United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
is a state prisoner incarcerated in Pelican Bay State Prison
who proceeds pro se and in forma pauperis with a petition for
writ of habeas corpus filed pursuant to 28 U.S.C. §
2254. ECF No. 1. Petitioner has also filed a renewed motion
to stay this action and a newly proposed First Amended
Petition. ECF Nos. 26-7. This action is referred to the
undersigned United States Magistrate Judge pursuant to 28
U.S.C. § 636(b)(1)(B) and Local Rule 302(c). For the
reasons set forth below, this court denies petitioner's
motion to stay, strikes petitioner's proposed First
Amended Petition, and recommends that this action be
is serving an indeterminate sentence of 25 years to life for
first degree residential burglary, and a determinate sentence
of 11 years for multiple enhancements, including great bodily
injury. Sentences on petitioner's additional convictions
for arson of a structure causing great bodily injury, and
possession of a flammable material for malicious use were
stayed. These sentences are based on petitioner's 2002
convictions in the Shasta County Superior Court, as amended
on appeal and upon resentencing (Trial Court No. 99F3140).
See People v. Parvin (Parvin I), 2003 WL
1522012, 2003 Cal.App. Unpub. LEXIS 2843 (Cal.Ct.App. Mar.
25, 2003) (No. C040905); petition for review denied by the
Cal. Supreme Court on June 11, 2003 (No. S115217); see
also People v. Parvin (Parvin II), 2014 WL
5661709, 2014 Cal.App. Unpub. LEXIS 7887 (Cal.Ct.App. Nov. 5,
2014) (No. C076261) (dismissing as untimely petitioner's
appeal of trial court's denial of his motion to modify
sentence pursuant to Cal. Penal Code § 1260); petition
for review denied by the Cal. Supreme Court on January 14,
2015 (No. S223095); see Clerk's Transcript (CT),
August 25, 2014, petitioner filed in the Shasta County
Superior Court a Petition for Recall of Sentence Under the
Three Strikes Reform Act of 2012 and Penal Code section
1170.126. See Clerk's Transcript (CT), Vol. 1,
at pp. 4-12. On September 9, 2014, the Superior Court denied
the petition on the ground that the resentencing law does not
apply to petitioner for the following reasons:
The offenses for which the defendant stands convicted are
serious and/or violent felonies, as well as the fact the
great bodily injury enhancement also makes the offenses
serious or violent. [¶] Petitioner is not eligible for
resentencing and, therefore, is not entitled to resentencing
pursuant to Penal Code section 1170.126(e)(1). To be eligible
for Penal Code section 1170.126 resentencing consideration,
the instant (commitment) offense for which an indeterminate
sentence has been imposed under the three strikes law must be
for an offense that is not a serious or violent felony as
Id., at pp. 15-6; see also ECF No. 1 at
45-6. Petitioner's appeal of this matter
(No. C077644) was dismissed as frivolous on December 18,
2014, see ECF No. 1 at 41; his petition for review
(No. S223999) was denied by the Cal. Supreme Court on March
11, 2015, see id. at 39.
filed his original federal petition for writ of habeas corpus
in the instant action on November 21, 2015. ECF No. 1. Upon
initial review of the petition, the undersigned found it
successive and recommended it be dismissed without prejudice.
ECF No. 5. Petitioner objected, explaining that his petition
challenged the state court's recent rulings rejecting his
request for resentencing under California's Three Strikes
Reform Act. ECF No. 7. The undersigned vacated the findings
and recommendations and directed the parties to complete
briefing on the petition. ECF No. 8. Respondent answered, ECF
No. 14, and, after extended time, petitioner filed a
traverse, ECF No. 18.
on March 12, 2018, and April 30, 2018, petitioner filed two
motions to stay this action and submitted a proposed First
Amended Petition. See ECF Nos. 21-3. By order filed
January 17, 2019, the undersigned construed petitioner's
motions, expressly filed under King v. Ryan, 564
F.3d 1133 (9th Cir. 2009), as requests for a
“Kelly stay” under Kelly v.
Small, 315 F.3d 1063, 1068 (9th Cir. 2003), cert.
denied, 538 U.S. 1042 (2003), overruled on other grounds
by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007).
See ECF No. 24. The court found that
petitioner's motions lacked clarity, particularly in
identifying petitioner's exhausted and unexhausted
claims, and that his proposed amended petition was
incomplete. Id. Therefore the court struck the
proposed amended petition, denied the motions to stay without
prejudice, granted petitioner leave to file a new
“Proposed Amended Petition” and new motion to
stay which, if filed, was then to be fully briefed by the
February 22, 2019, petitioner filed the instant motion to
stay and a new Proposed First Amended Petition. ECF Nos.
26-7. Respondent filed an opposition to petitioner's
motion, ECF No. 28, and petitioner filed a reply, ECF No. 29.
the filing of his original federal petition and the filing of
his instant motion to stay, petitioner continued to pursue
matters in the state courts. As recounted by the Court of
Appeal in People v. Parvin (Parvin III),
2018 WL 6715908, at *2, 2018 Cal.App. Unpub. LEXIS 8674
(Cal.Ct.App. Dec. 21, 2018) (No. C086643) (brackets in
On December 27, 2017, defendant filed a pleading in the
superior court styled, “Writ of Mandamus - Prohibition
(-) Coram Nobis - The All Writs Act, ” in which he
apparently contended the trial court had erred in 2002 by
treating a juvenile adjudication as a prior conviction for
purposes of the three strikes law. He had raised this
contention unsuccessfully in his first appeal, where we
rejected it in reliance on People v. Bowden (2002)
102 Cal.App.4th 387. (Parvin I, supra, C040905.) . .
On January 31, 2018, the trial court summarily denied the
writ, stating in part: “Thus, [the court] having
already ruled on the issue [in 2014], more than a decade
having passed since the original sentence, [defendant] having
failed to appeal the issue on resentencing as would have been
proper, and having failed to support his rather vague request
for relief with supporting documentation or law, writ relief
does not lie.”
Defendant filed a timely notice of appeal from the trial
Appointed counsel filed an opening brief that sets forth the
facts of the case and requests this court to review the
record and determine whether there are any arguable issues on
appeal. . . . Defendant filed a supplemental brief renewing
his contention that a juvenile adjudication may not be used
as a prior conviction for purposes of the three strikes law.
Construing his brief as an attempt to obtain modification of
his original sentence long after the sentencing court has
lost jurisdiction to do so, we dismiss the appeal for the
reasons stated in Parvin II.
thereafter sought review in the California Supreme Court,
which was summarily denied on February 27, 2019 (No.
Motion to Stay
again moves to stay this action pursuant to Kelly v.
Small, 315 F.3d at 1068. See ECF No. 26.
Petitioner's original petition identifies three claims:
(1) the California Supreme Court erred in refusing to apply
the prison mailbox rule to petitioner's petition for
rehearing; (2) the trial court erred in relying on
petitioner's juvenile conviction as a strike under the
Three Strikes Law; and (3) the trial court erred in refusing
to resentence petitioner under the Three Strikes Reform Act.
See ECF No. 1. In his motion to stay, and reply to
respondent's opposition thereto, petitioner contends that
his original Claim One is now moot; his original Claim Two
was exhausted when petitioner filed his original petition;
and his original Claim Three “is now exhausted and part
of [the] Amended petition that was presented to the State
Supreme Court.” ECF No. 29 at 2; see also ECF
concedes the state court exhaustion of petitioner's
original Claim Two. See ECF No. 14 at 2, 7.
Respondent does not address - and this court is unable to
confirm - the alleged exhaustion of petitioner's original
Claim Three, e.g., petitioner has not submitted a copy of his
“Amended petition . . . presented to the State Supreme
Court.” ECF No. 29 at 2. In any case, ...