United States District Court, S.D. California
STEPHEN M. PARISH, Petitioner,
MICHAEL MARTEL, Warden, et al., Respondents.
ORDER GRANTING MOTION TO DISMISS AND DENYING
CERTIFICATE OF APPEALABILITY
Alan Burns Chief Judge, United States District Court.
Stephen M. Parish, a state prisoner proceeding pro se with a
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 (“Petition” or “Pet.”),
challenges the use of a prior conviction to enhance his
sentence in his 2012 conviction in San Diego Superior Court
case no. SCD240397 for five counts of robbery and various
firearms charges. (Pet., ECF No. 1 at 13-22.) The Court has
read and considered the Petition, [ECF No. 1], the Motion to
Dismiss and Memorandum of Points and Authorities in Support
of the Motion to Dismiss [ECF No. 6, 6-1], the Opposition to
the Motion to Dismiss [ECF No. 11], the lodgments and other
documents filed in this case, and the legal arguments
presented by both parties. For the reasons discussed below,
the motion to dismiss is GRANTED and the
case is DISMISSED with prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
1, 2012, the San Diego County District Attorney's Office
charged Parish with five counts of robbery, a violation of
California Penal Code § 211 (counts one through 5), one
count of possession of a firearm by a felon, a violation of
California Penal Code § 29800(a)(1) (count six),
possession of ammunition by a prohibited person, a violation
of California Penal Code § 30305(a)(1) (count seven) and
carrying a concealed firearm in a vehicle, a violation of
California Penal Code § 25400(a)(1) (count eight).
(Lodgment No. 4, ECF No. 7-11 at 56-62.) As to count eight,
the information also alleged that Parish had previously been
conviction of robbery, within the meaning of California Penal
Code § 25400(c)(1). (Id.) Finally, the
information alleged Parish had suffered nineteen prior
convictions which made him ineligible for probation, within
the meaning of California Penal Code § 1203(e)(4),
nineteen prior convictions for which he had served a prison
term, within the meaning of California Penal Code
§§ 667.5(b) and 668, one serious felony prior
conviction, within the meaning of California Penal Code
§§ 667(a)(1), 668 and 1192.7(c), and one prior
strike conviction, within the meaning of §§ 667(b)
through (i), 668 and 1170.12. (Id.) One of the prior
convictions alleged as a serious felony prior conviction, a
prison prior and a strike prior was from 1995 in case no.
entered into a plea agreement in which he pleaded guilty to
robbery and was given a stipulated prison sentence.
(Id. at 63-66.) Following a jury trial, Parish was
convicted of the remaining counts. (Id. at 147-51.)
Parish was sentenced to twenty-two years and four months in
prison. (Lodgment No. 7-10 at 17.)
appealed his conviction to the California Court of Appeal for
the Fourth Appellate District. (Lodgment Nos. 5-7, ECF Nos.
7-13-7-15.) The state appellate court upheld his conviction
in a written opinion. (Lodgment No. 8, ECF No. 7-16.) Parish
then filed a petition for review in the California Supreme
Court, which summarily denied the petition. (Lodgment No.
9-10, ECF No. 7-17-7-18.)
four years later, Parish filed a petition for writ of habeas
corpus in the California Supreme Court which raised the same
claims he raises in his current federal petition. (Lodgment
No. 11, ECF No. 7-19.) The California Supreme Court denied
the petition as untimely, citing In re Robbins, 18
Cal.4th 770, 780 (1998). (Lodgment No. 12, ECF No. 7-20.)
argues that the use of his 1995 robbery conviction to enhance
his sentence in his 2012 case violated his federal
constitutional rights because his counsel during the 1995
case was ineffective. (Pet., ECF No. 1 at 14-22.) Respondent
contends the petition is untimely. (Mot. to Dismiss, ECF No.
Any Claim Involving Case No. SF90551 Is Barred By
Lackawanna County District Attorney v. Coss
extent Parish seeks to challenge his conviction in case no.
SF90551, the challenge is precluded by Lackawanna County
District Attorney v. Coss, 532 U.S. 394 (2001). In
Lackawanna, the Supreme Court stated:
[W]e hold that once a state conviction is no longer open to
direct or collateral attack in its own right because the
defendant failed to pursue those remedies while they were
available (or because the defendant did so unsuccessfully),
the conviction may be regarded as conclusively valid. See
Daniels, post, at 382, 121 S.Ct. 1578. If that
conviction is later used to enhance a criminal sentence, the
defendant generally may not challenge the enhanced ...