Parish v. Martel

          ORDER GRANTING MOTION TO DISMISS AND DENYING CERTIFICATE OF APPEALABILITY

          Larry Alan Burns Chief Judge, United States District Court.

         I. INTRODUCTION

         Petitioner 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.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         On June 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. SF90551. (Id.)

         Parish 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.)

         Parish 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.)

         Over 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.)

         III. DISCUSSION

         Parish 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. 6-1.)

         A. Any Claim Involving Case No. SF90551 Is Barred By Lackawanna County District Attorney v. Coss

         To the 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 ...