United States District Court, E.D. California
MARCUS J. BEAVERS, Petitioner,
STU SHERMAN, Warden, Respondent.
FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE
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).
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.
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.
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.
Placer County Conviction
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.
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.” 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.
Sacramento County Conviction
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
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.
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. This petition was decided in Sacramento
County Superior Court on June 7, 2016. ECF No. 11-14.
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.
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.
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