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Brown v. Gastelo

United States District Court, N.D. California

December 9, 2019

KENNY M. BROWN, Petitioner,
v.
JOSIE GASTELO, Warden, Respondent.

          ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION AS UNTIMELY; AND DENYING CERTIFICATE OF APPEALABILITY

          YVONNE GONZALEZ ROGERS, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Petitioner 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.

         Before 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.

         Having read and considered the papers submitted and being fully informed, the Court GRANTS Respondent's motion to dismiss.

         II. BACKGROUND

         On 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.[1]

         On March 8, 2017, [2] 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).[3] 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).

         According to the Eighth Amended Petition, [4] 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. at 3.

         On June 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.

         On 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.

         On 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.

         On 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).

         On June 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.

         On July 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.

         On 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.

         On 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.

         On 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 ...


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