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Beavers v. Sherman

United States District Court, E.D. California

September 26, 2019

MARCUS J. BEAVERS, Petitioner,
v.
STU SHERMAN, Warden, Respondent.

          FINDINGS AND RECOMMENDATIONS

          GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE

         Introduction and Summary

         Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302(c).

         The petition in this case, as colored by the underlying state court proceedings, is unclearly written in terms of the particular state case under attack here, but there is no mistaking the overarching claim. Petitioner contests the use of a prior Placer County conviction, a conviction to which petitioner entered a plea, to enhance the sentence for which petitioner is currently incarcerated (the Sacramento County case). Respondent has made a motion to dismiss in which alternative positions are argued in terms of whether the Placer County conviction is the conviction directly at issue here, or whether the Sacramento County conviction is the pertinent conviction, albeit with the attempt to have the sentence in that case overturned because of the use of the prior Placer County conviction.

         The undersigned will proceed in a likewise fashion although it is most probably the latter conviction petitioner ultimately places at issue in this habeas action. For the reasons set forth herein, to the extent the Placer County conviction is the conviction under direct review, petitioner is no longer in custody for that conviction, and hence the court has no jurisdiction to review it.[1]

         To the extent that the Sacramento County conviction/sentence is the case for which habeas review is sought, albeit on the grounds that the Placer County conviction was utilized unfairly, the court finds that the action is barred by the AEDPA limitations statute. Furthermore, to the extent that petitioner’s attacks use of the prior Placer County conviction in the Sacramento County case, the claim is non-cognizable as a matter of law.

         Factual Background

         The Placer County Conviction

         In 2010, petitioner pled guilty to Participation in a Criminal Street Gang, Felon in Possession of a Firearm and Transporting Marijuana. ECF No. 11-1 (showing sentencing hearing of June 15, 2010). This was Placer County Case No. 62-090968/F4511, hereinafter the “Placer County conviction.” Petitioner did not appeal this conviction.

         According to respondent’s lodging, petitioner was paroled (three-year parole) on September 3, 2011. ECF No. 11-17. During that parole period, 112 days were apparently tolled because petitioner was “at large.” The form, although difficult to interpret for the administratively unschooled, indicates that with the addition of 91 days revocation time, petitioner was discharged from parole on March 24, 2015. In any event, parole in this case could not have extended past September 3, 2011 plus 112 days-January 2, 2016, extending parole with every possible extension. See Cal. Penal Code §§ 3000 and 3064 limiting any three-year parole period to a maximum of four years plus added time for being “at large.”[2] It is not entirely clear whether petitioner’s parole period could have been extended so far, but in an abundance of caution, the undersigned has included the latest period in the computation. This federal petition, ECF No. 1, was not filed until February 28, 2019, years after any conceivable parole period expired. Petitioner was not “in custody” for the Placer County conviction when he filed the federal petition.

         The Sacramento County Conviction

         The factual scenario for this conviction is best set forth in the appellate opinion which includes an interplay between the Placer County conviction and the Sacramento County conviction:

Defendant Marcus Jamal Beavers has a long criminal history, both as a juvenile and as an adult. A prior conviction in 2010 for actively participating in a criminal street gang is at the heart of the present dispute. (Pen. Code, § 186.22, subd. (a); unless otherwise set forth, statutory references that follow are to the Penal Code.
In this case, defendant was convicted of second degree robbery, assault with a firearm, and possession of hydromorphone. (§§ 211 & 245, subd. (a)(2); Health & Saf.Code, § 11350, subd. (a).) Given defendant’s 2010 criminal street gang conviction, which was a strike which was alleged and which the court found true, the court sentenced defendant to 16 years four months with a prison prior under California’s three strikes law. (§§ 667, 667.5 & 1170.12.)
Shortly before defendant’s trial, our Supreme Court decided People v. Rodriguez (2012) 55 Cal.4th 1125, 1131–1132 (Rodriguez), which held that subdivision (a) of section 186.22 requires proof that a defendant promoted, furthered, or assisted felonious conduct by members of the gang, and that this element is not satisfied when a defendant acts alone in committing a felony. Based on Rodriguez, defendant argues he should not have been sentenced as a second striker because the underlying 2010 prior conviction was not a strike since no evidence showed he acted with at least one other gang member.
Because defendant pleaded guilty to actively participating in a criminal street gang under section 186.22, subdivision (a), he necessarily admitted every element of that offense, including that he promoted, furthered, or assisted felonious conduct by members of the gang. We therefore affirm the judgment as defendant’s prior conviction qualified as a serious felony for purposes of the three strikes law.

People v. Beavers, No. C073720, 2015 WL 4111536, at *1 (Cal.Ct.App. July 8, 2015). Petitioner did not seek direct review with the California Supreme Court.[3]

         A series of state habeas petitions were undertaken, the first one was filed in Placer County Superior Court on April 18, 2016, which was then transferred to Sacramento Superior Court on May 10, 2016. See ECF Nos. 11-5, 11-6. The undersigned will utilize April 18, 2016 as the date of filing because it makes no difference in the outcome of the limitations issue.[4] This petition was decided in Sacramento County Superior Court on June 7, 2016. ECF No. 11-14.

         For purposes of this limitations analysis, which applies only to the Sacramento County conviction, and because it is unclear in the state habeas petitions what judgment petitioner desires to attack, and giving petitioner the benefit of every doubt, all of the state petitions will be assumed to attack the Sacramento County conviction.

         The next state petition was not filed until April 16, 2018 in Placer County. This is the petition which respondent describes as one that cannot be found. ECF No. 9 at 8, fn.5. However, it was clearly decided on the merits on May 23, 2018. ECF No. 11-8. The decision expressly found that the petition had been filed on April 16, 2018.

         Next, on November 5, 2018, petitioner filed in the California Court of Appeal. ECF No. 11-9 (petitioner confusingly labels his petition as in the Court of Appeal located in Sacramento County). This petition was quickly denied by the Court of Appeal on November 8, 2018. Petitioner followed up on this denial with a petition filed in the California Supreme Court on December 12, 2018). ECF No. 11-11 (The petition is labeled ...


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