United States District Court, N.D. California
KENNY M. BROWN, Petitioner,
JOSIE GASTELO, Warden, Respondent.
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS
PETITION AS UNTIMELY; AND DENYING CERTIFICATE OF
GONZALEZ ROGERS, UNITED STATES DISTRICT JUDGE
Kenny M. Brown, a state prisoner currently incarcerated at
the California Men's Colony, filed the instant pro
se action for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. On January 16, 2018, Magistrate Judge
Joseph C. Spero issued an Order directing the Clerk of the
Court to reassign this case to a district judge pursuant to
Williams v. King, 875 F.3d 500, 502-05 (9th Cir.
2017) (magistrate judge lacks jurisdiction over a case unless
all named parties, including unserved ones, consent to
magistrate judge's jurisdiction). Dkt. 36. The case was
then reassigned to the undersigned district judge. Dkt. 37.
The operative petition in this matter is the Ninth Amended
Petition. Dkt. 66.
the Court is Respondent's motion to dismiss the claims in
the petition as untimely under the one-year statute of
limitations established by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2244(d). Dkt. 72 at 4-5. In the alternative,
Respondent argues the petition should be dismissed on the
grounds that it is procedurally defaulted and fails to state
a cognizable claim upon which federal habeas relief may be
granted. Id. at 5-7.
read and considered the papers submitted and being fully
informed, the Court GRANTS Respondent's motion to
January 26, 2004, in Alameda County Superior Court No.
144451, Petitioner entered a plea of no contest to attempted
murder, and he also admitted a prior serious felony
conviction, a prison prior, and a gun enhancement, in
exchange for a sentence of twenty-four years in state prison.
Dkt. 66 at 1-2.
March 8, 2017,  Petitioner initiated the instant federal
action. Dkt. 1. On May 2, 2017, this action was dismissed
because Petitioner had not perfected his application to
proceed in forma pauperis or paid the filing fee.
Dkt. 10. Thereafter, Petitioner paid the filing fee and filed
an amended petition. Dkts. 12, 15. Therefore, on May 22,
2017, the Court reopened this action and vacated the order of
dismissal. Dkt. 16. Then Petitioner filed several amended
petitions (dkts. 19, 21, 25, 27, 28, 33, 35) after the Court
issued dismissals with leave to amend on multiple occasions
(dkts. 16, 20, 31). The Court notes that the Eighth Amended
Petition contained four claims challenging the lawfulness of
Petitioner's 1993 conviction that was used to enhance his
2004 sentence. Dkt. 35 at 4-5. On March 30, 2018, the Court
found that it did not appear from the face of the Eighth
Amended Petition that it was without merit and ordered
Respondent to file an answer showing cause why the Eighth
Amended Petition should not be granted or, in the
alternative, a motion to dismiss on procedural grounds. Dkt.
39. Respondent filed a motion to dismiss the Eighth Amended
Petition (dkt. 47), but as further explained below, the Court
denied that motion without reaching the merits (dkt. 65).
to the Eighth Amended Petition,  Petitioner did not begin
seeking state collateral relief with respect to his 2004
judgment until 2017, when he filed a habeas petition in the
Alameda County Superior Court on an unspecified date. Dkt. 35
at 2-3. Petitioner indicates that in May 2017, the state
superior court denied his state habeas petition. Id.
5, 2017, Petitioner filed a habeas petition in the California
Court of Appeal (A151451). Resp't Ex. 1; Dkt. 35 at 3. On
July 19, 2017, the state appellate court denied the state
habeas petition, finding it procedurally barred because
Petitioner received the benefit of his plea-bargained
sentence, citing People v. Hester, 22 Cal.4th 290,
295 (2000), and because it was untimely, citing In re
Robbins, 18 Cal.4th 770, 780 (1998). See
Resp't Ex. 1. The state appellate court additionally
found that Petitioner had failed to plead his claims with
sufficient particularity and to include copies of reasonably
available documentary evidence, citing People v.
Duvall, 9 Cal.4th 464, 474 (1995) and Ex Parte
Swain, 34 Cal. 2d 300, 303-04 (1949). See id.
August 10, 2017, Petitioner filed his first habeas petition
in the California Supreme Court (S243711), challenging the
use of an “illegal” 1993 prior conviction to
enhance his 2004 sentence. See Resp't Exs. 2, 3;
Dkt. 35 at 3. On October 11, 2017, the state supreme court
denied the petition, finding it procedurally barred as
untimely, citing In re Robbins, and alternatively
finding that Petitioner had not included copies of reasonably
available documentary evidence to support his claims, citing
Duvall. Resp't Ex. 2.
December 14, 2017, Petitioner filed a second habeas petition
in the California Supreme Court (S246018), challenging the
calculation of his prison custody credits, which was denied
on February 28, 2018. Resp't Exs. 4, 5. On May 21, 2018,
Petitioner filed a second habeas petition in the California
Court of Appeal (A154319), seeking relief under Proposition
57, which provided procedures for defendants entitled to a
youthful offender parole hearing to return to superior court
to make a record relevant to such hearing. Resp't Exs. 6,
7. On May 31, 2018, the state appellate court denied the
petition on procedural grounds. Resp't Ex. 6.
April 3, 2018, Petitioner initiated a second federal habeas
action, Brown v. Gastelo, No. C 18-2110 YGR (PR),
challenging his 2004 judgment in the Central District of
California, which was transferred to this Court. See
Dkts. 1, 5, 8 in No. C 18-2110 YGR (PR).
15, 2018, Petitioner filed a third habeas petition in the
California Supreme Court (S249500), again challenging the use
of his 1993 prior to enhance his 2004 sentence. Resp't
Exs. 8, 9. On October 24, 2018, the state supreme court
denied the petition. Resp't Ex. 8.
13, 2018, Petitioner filed a third habeas petition in the
California Court of Appeal (A154799), challenging the use of
his 1993 prior to enhance his 2004 sentence. Resp't Exs.
10, 11. On August 16, 2018, the state appellate court denied
the petition, finding it successive (citing In re
Reno, 55 Cal.4th 428, 452-53, 455 (2012)), conclusory
(citing Swain), and lacking an adequate record
(citing Duvall). Resp't Ex. 10.
September 4, 2018, Petitioner filed a fourth habeas petition
in the California Supreme Court (S251179), once again
challenging the use of his 1993 prior to enhance his 2004
sentence. Resp't Exs. 12, 13. The California Supreme
Court's official website shows that the California
Supreme Court denied the petition on May 15, 2019. See
Brown (Kenny) On H.C., Cal. S.Ct. No. S251179.
October 4, 2018, the Court denied the motion to dismiss this
action without prejudice, and ordered Petitioner to file a
single petition in this action containing all of the claims
he wished to bring with respect to his 2004 judgment. Dkt. 65
at 2-3. The Court then dismissed the second federal habeas
case. Id. at 3.
October 15, 2018, Petitioner filed a Ninth Amended Petition
in this case, challenging the use of his 1993 prior to
enhance his 2004 sentence. Dkt. 66. On January 23, 2019, the
Court issued an Order to Show Cause, directing ...