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Parvin v. Robertson

United States District Court, E.D. California

June 24, 2019

JOHN ALAN PARVIN, Petitioner,
v.
JAMES ROBERTSON, Warden, Respondent.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Petitioner 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 dismissed.

         II. Background

         Petitioner 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);[1] see Clerk's Transcript (CT), Vol. 2.[2]

         On 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 defined.

Id., at pp. 15-6; see also ECF No. 1 at 45-6.[3] 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.

         Petitioner filed his original federal petition for writ of habeas corpus in the instant action on November 21, 2015.[4] 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.

         Thereafter, 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 parties. Id.

         On 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.

         Between 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 original):

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 court's order.
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.

         Petitioner thereafter sought review in the California Supreme Court, which was summarily denied on February 27, 2019 (No. S253699).

         III. Motion to Stay

         Petitioner 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 No. 26.

         Respondent 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, ...


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