Brian Dubrin v. People of the State of Califor

Filing

FILED OPINION (RICHARD A. PAEZ, PAUL J. WATFORD and SUZANNE B. CONLON) REVERSED AND REMANDED. Judge: PJW Authoring. FILED AND ENTERED JUDGMENT. [8674630]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIAN CHARLES DUBRIN ,
Petitioner-Appellant,

No. 10-56548

v.

D.C. No.
2:10-cv-01032CJC-JC

PEOPLE OF THE STATE OF
CALIFORNIA ,
Respondent-Appellee.

OPINION

Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted
March 8, 2013—Pasadena, California
Filed June 20, 2013
Before: Richard A. Paez and Paul J. Watford, Circuit
Judges, and Suzanne B. Conlon, District Judge.*
Opinion by Judge Watford

*

The Honorable Suzanne B. Conlon, United States District Judge for the
Northern District of Illinois, sitting by designation.

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DUBRIN V. STATE OF CALIFORNIA
SUMMARY**

Habeas Corpus
The panel reversed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition challenging the use
of one of the prior convictions to enhance petitioner’s
sentence under the Three Strikes Law.
In 2000, petitioner pleaded no contest to making criminal
threats, after both the prosecutor and judge incorrectly
advised him that the conviction would not count as a strike.
When petitioner learned that his prior conviction would count
as a strike, he filed pro se habeas petitions in the state trial,
appellate, and supreme courts and was denied relief because
the state courts incorrectly determined that he was no longer
“in custody.” However, he was still on parole and was in fact
“in custody” for purposes of his habeas petitions. In 2008,
petitioner was convicted of several felonies that counted as a
third strike and he was sentenced accordingly. After a
subsequent round of state habeas petitions challenging the
2000 conviction was denied, he filed a pro se federal habeas
petition.
The panel held that, although petitioner has fully served
the sentence for the 2000 conviction, he is “in custody” for
the 2008 sentence for purposes of habeas review. The panel
held that when a defendant cannot be faulted for failing to
obtain timely review of a constitutional challenge to an
expired prior conviction, and that conviction is used to
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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enhance his sentence for a later offense, he may challenge the
enhanced sentence under § 2254 on the ground that the prior
conviction was unconstitutionally obtained. The panel
remanded with instructions for the district court to appoint
counsel if requested.

COUNSEL
Brian Charles Dubrin, pro se, Corcoran, California, for
Petitioner-Appellant.
David A. Wildman, Deputy Attorney General, Los Angeles,
California, for Respondent-Appellee.

OPINION
WATFORD, Circuit Judge:
The petitioner in this case, Brian Charles Dubrin, is
serving a sentence of 25 years to life under California’s threestrikes law. He petitioned for a writ of habeas corpus on the
ground that one of the prior convictions used to enhance his
sentence was obtained in violation of his constitutional rights.
The facts related to that prior conviction are the
following. In 2000, Dubrin pleaded no contest to making
criminal threats in violation of California Penal Code § 422.
Before Dubrin entered his plea, his lawyer asked the
prosecutor to confirm that this conviction would not count as
a “strike” under California’s three-strikes law. Some
uncertainty surrounded the question because, at the time
Dubrin committed the offense, making criminal threats did

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not qualify as a strike. The day before Dubrin’s change-ofplea hearing, however, California voters had approved
Proposition 21, an initiative statute that designated additional
crimes as strikes. Whether Dubrin’s criminal threats
conviction would count as a strike was an important
consideration for him, as he had already suffered one strike
for an assault conviction in 1997.
At Dubrin’s change-of-plea hearing, the prosecutor stated
that he had “checked with [his] appellate department” and
confirmed that Dubrin’s criminal threats conviction would
not count as a strike. Summing up the parties’ mutual
understanding, the prosecutor stated, “so we’re going under
the assumption in this plea that this 422 itself is not a strike.”
The judge who accepted Dubrin’s plea agreed: “That would
have been my reading of the initiative, that it’s not
[applicable].” Even if it were applicable, the judge noted,
there would likely be “issues of retroactivity” anyway.
As it turned out, both the prosecutor and the judge were
wrong. Proposition 21 added § 422 to the list of crimes that
count as strikes, and there were no “issues of retroactivity” in
applying Proposition 21 to Dubrin. See People v. Ringo,
134 Cal. App. 4th 870, 884 (2005); People v. James, 91 Cal.
App. 4th 1147, 1150–51 (2001). In 2004 and 2005, after
learning that his 2000 conviction would count as a strike,
Dubrin filed pro se habeas petitions in the state trial court, the
California Court of Appeal, and the California Supreme
Court. The appellate courts summarily denied relief, without
reaching the merits of Dubrin’s claims, on the ground that he
was not “in custody,” a prerequisite for obtaining habeas
review. In re Azurin, 87 Cal. App. 4th 20, 26 (2001).

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The state appellate courts, too, were wrong. By 2005,
Dubrin had been released from prison, but he was still on
parole for his criminal threats conviction and remained so
until 2007. Thus, for purposes of obtaining habeas relief, he
remained “in custody” and his claims should not have been
rejected on this threshold ground. See id. at 23; accord Jones
v. Cunningham, 371 U.S. 236, 243 (1963) (parolee is in
custody for purposes of federal habeas review). As a pro se
litigant who was no longer incarcerated, Dubrin
understandably assumed the state appellate courts were right
when they told him he was not “in custody.” And, having
been advised by the state courts that he was no longer eligible
for habeas relief, Dubrin did not pursue habeas relief in
federal court.
That brings us to the present case. In 2008, a jury
convicted Dubrin of several felonies that counted as a third
strike (the other two strikes were his 1997 assault conviction
and the 2000 criminal threats conviction at issue here).
Dubrin argued that his 2000 conviction was invalid and could
not be counted as a strike, but the trial court rejected that
argument and sentenced Dubrin as a three-strikes offender.
The state Court of Appeal affirmed that ruling on direct
appeal, holding that, even though Dubrin had been
misadvised about the effect of his 2000 conviction, he had not
shown prejudice. While pursuing his direct appeal, Dubrin
filed another round of state habeas petitions challenging the
legality of his 2000 conviction, but those petitions were also
summarily denied.
In 2010, Dubrin filed the pro se federal habeas petition
that is now before us. In it, he challenges the constitutional
validity of his 2000 criminal threats conviction, which was an
essential pillar of the three-strikes sentence he received in

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2008. Dubrin has fully served the sentence he received for
the 2000 conviction, so he is no longer “in custody” on that
conviction. But he is “in custody” under the 2008 sentence,
the constitutionality of which the district court may review
under 28 U.S.C. § 2254(a). See Lackawanna Cnty. Dist.
Attorney v. Coss, 532 U.S. 394, 401–02 (2001). That remains
true even though Dubrin erroneously listed his 2000
conviction on the court-provided form as the “[c]onviction on
which the petition is based.” “[C]onstrued with the deference
to which pro se litigants are entitled,” his petition can be read
as challenging the 2008 three-strikes sentence, “as enhanced
by the allegedly invalid prior conviction.” Maleng v. Cook,
490 U.S. 488, 493 (1989) (per curiam).
Whether the federal courts should entertain Dubrin’s
challenge to the constitutional validity of his 2000 conviction,
presented in a petition attacking the 2008 sentence he is
currently serving, requires further discussion.
Congress has granted federal courts broad authority over
habeas petitions filed by state prisoners who claim to be “in
custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2254(a). Section 2254
excludes from this broad grant of jurisdiction only one
category of claims—those for ineffective assistance of postconviction counsel. § 2254(i). The Supreme Court has
nonetheless held that, for prudential reasons, federal courts
should not entertain certain other categories of constitutional
claims, notwithstanding the courts’ jurisdiction to hear them.
In Lackawanna County, the Supreme Court designated one
such category of claims. There the Court held that when an
“expired” prior conviction (one for which the sentence has
been fully served) is later used to enhance a criminal
sentence, a state prisoner “generally may not challenge the

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enhanced sentence through a petition under § 2254 on the
ground that the prior conviction was unconstitutionally
obtained.” 532 U.S. at 403–04.
The Supreme Court identified two prudential
considerations justifying this general rule: “the need for
finality of convictions and ease of administration.” Id. at 402.
With respect to the first consideration, the Court stressed that
a state-court judgment of conviction “is subject to review in
multiple forums,” including direct appeal, state postconviction review, and federal habeas review, and noted that
these vehicles for review cannot remain available
“indefinitely and without limitation.” Id. at 402–03 (internal
quotation marks omitted). With respect to the second
consideration, the Court observed that federal habeas review
of expired prior convictions would often prove cumbersome;
with the passage of time “the likelihood that trial records will
be retained by the local courts and will be accessible for
review diminishes substantially.” Id. at 403. At bottom, the
Court concluded that when state courts have already reviewed
and upheld a prior conviction (or the defendant chooses to
forgo such review), the value of affording an additional layer
of federal habeas review is generally too minimal to justify
the significant costs that would be incurred. Cf. Stone v.
Powell, 428 U.S. 465, 493 (1976).
The balance might be struck differently, however, when
a defendant, despite exercising reasonable diligence, did not
receive a full and fair opportunity to obtain state-court review
of his prior conviction. In Lackawanna County, a threeJustice plurality suggested that federal habeas review of an
expired prior conviction might be warranted when the
defendant cannot be “faulted for failing to obtain timely
review of a constitutional claim.” 532 U.S. at 405 (plurality

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opinion). The plurality gave as an example the scenario in
which a state court, “without justification, refuse[s] to rule on
a constitutional claim that has been properly presented to it.”
Id. Whether this exception to Lackawanna County’s general
rule should be recognized remains an open question in this
and most other circuits. The Tenth Circuit—the only circuit
to our knowledge that has addressed the question—has
recognized the exception as “good law” in that jurisdiction.
McCormick v. Kline, 572 F.3d 841, 851 (10th Cir. 2009).
We believe sound reasons support permitting § 2254
review in the circumstances described by the plurality in
Lackawanna County. When those circumstances exist, the
prudential considerations that justify the general rule
established in Lackawanna County carry little or no weight.
The “first and most compelling” of those prudential
considerations—the interest in the finality of convictions—is
certainly compelling in the ordinary case, where the State has
afforded the defendant “both direct appeal and state
postconviction review” to correct any constitutional errors.
Lackawanna Cnty., 532 U.S. at 402. In that scenario, once a
prior conviction is no longer subject to direct or collateral
attack and has become final, “the State that secured the
conviction obtains a strong interest in preserving the integrity
of the judgment.” Id. at 403. In our view, that interest is
significantly weakened when the State’s courts, “without
justification, refuse to rule on a constitutional claim that has
been properly presented” to them. Id. at 405 (plurality
opinion). And the experience drawn from other contexts
suggests that the general interest in protecting the finality of
judgments will not be undermined by recognizing an
exception for circumstances in which a party was denied a
full and fair opportunity to litigate in a prior forum. See

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Kremer v. Chemical Constr. Corp., 456 U.S. 461, 480–81 &
n.22 (1982) (claim preclusion); Allen v. McCurry, 449 U.S.
90, 95 (1980) (issue preclusion).
Nor will the second prudential consideration supporting
the general rule—the “ease of administration of challenges to
expired state convictions,” Lackawanna Cnty., 532 U.S. at
403—be significantly undermined by the exception we
recognize here. The difficulties federal habeas courts would
frequently face in reviewing the constitutional validity of
expired prior convictions justify denying § 2254 review as a
general rule, particularly when such convictions have already
been subjected to multiple layers of state-court review. See
id. But we are confident that cases in which state courts
refuse to afford review of constitutional claims “without
justification” will arise rarely enough that no serious
administrative burdens will be imposed on the federal habeas
system. That has been the experience under the rule
established in Stone v. Powell, where the Supreme Court, for
similar prudential reasons, barred federal habeas review of
most Fourth Amendment claims “absent a showing that the
state prisoner was denied an opportunity for a full and fair
litigation of that claim at trial and on direct review.”
428 U.S. at 494 n.37. The Court’s preservation of federal
habeas review when state prisoners have been denied a full
and fair opportunity to litigate in state court has not led to a
flood of Fourth Amendment claims in § 2254 proceedings.
We see no reason to expect a different result with respect to
claims alleging that an unconstitutionally obtained prior
conviction has been used to enhance a sentence the petitioner
is currently serving.
Our decision is consistent with the overarching equitable
principles on which the writ of habeas corpus is grounded.

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Congress directed federal courts to dispose of habeas
petitions “as law and justice require,” 28 U.S.C. § 2243,
which the Supreme Court has interpreted as “an authorization
to adjust the scope of the writ in accordance with equitable
and prudential considerations.” Danforth v. Minnesota,
552 U.S. 264, 278 (2008). The Court exercised that authority
in Lackawanna County by restricting the scope of the writ
when strong prudential considerations justified doing so. But
when those considerations are absent, or at best present only
in greatly weakened form, we do not think it would serve the
interests of law and justice to deprive a state prisoner of what
“may effectively be the first and only forum available for
review of the prior conviction.” Lackawanna Cnty., 532 U.S.
at 406 (plurality opinion); see also Lonchar v. Thomas,
517 U.S. 314, 324 (1996). We therefore hold that when a
defendant cannot be faulted for failing to obtain timely
review of a constitutional challenge to an expired prior
conviction, and that conviction is used to enhance his
sentence for a later offense, he may challenge the enhanced
sentence under § 2254 on the ground that the prior conviction
was unconstitutionally obtained.
Under this exception to Lackawanna County’s general
rule, Dubrin may challenge the constitutional validity of his
2000 criminal threats conviction, provided he has satisfied the
procedural prerequisites for obtaining relief under § 2254.
See Lackawanna Cnty., 532 U.S. at 404. Dubrin cannot “be
faulted for failing to obtain timely review of [his]
constitutional claim.” Id. at 405 (plurality opinion). After
learning that, contrary to what he had been told at the changeof-plea hearing, his 2000 conviction would count as a strike,
he proceeded with reasonable diligence to seek state habeas
review of his constitutional challenge to that conviction. The
state courts, however, “without justification, refuse[d] to rule

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on a constitutional claim that ha[d] been properly presented”
to them. Id. They wrongly told Dubrin that he was ineligible
for state habeas relief because he was no longer “in custody,”
and refused to reach the merits of his claims. As a pro se
litigant, Dubrin cannot be faulted for failing to correct the
state courts’ error by advising them that he was still “in
custody” by virtue of being on parole. The district court
therefore erred in dismissing Dubrin’s petition under
Lackawanna County’s general rule.
We reject the State’s alternative contention that Dubrin’s
petition should be dismissed because he erroneously
designated the “People of the State of California” as the
respondent, rather than the state official who has custody of
him. See Stanley v. Cal. Supreme Court, 21 F.3d 359, 360
(9th Cir. 1994). When the State raised this issue below,
without identifying any conceivable prejudice it could have
suffered, Dubrin promptly attempted to remedy the error by
submitting an amended cover sheet for his petition that
named the Director of the California Department of
Corrections as the respondent. On remand, the district court
shall either deem Dubrin’s pro se petition to have been
amended to name the proper respondent, or grant him leave
to amend his petition to correct this technical deficiency. See
id.; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 896 (9th Cir.
1996).
If Dubrin so requests, the district court should appoint
counsel to represent him on remand. Although Dubrin
previously rejected this court’s offer to appoint counsel on
appeal, we suggest that the issues in this case would best be
aired with the input of counsel on both sides.
REVERSED AND REMANDED.