Brian Keith Brim v. People of State of California

Filing 22

MEMORANDUM OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND DISMISSING ACTION WITH PREJUDICE by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that Respondent's motion to dismiss the Petition is granted and Judgment be entered denying the Petition and dismissing this action with prejudice. (See Order for details) 15 (bem)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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BRIAN KEITH BRIM,1

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Petitioner,

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v.
PEOPLE OF STATE OF
CALIFORNIA,
Respondent.

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Case No. CV 16-5488-JPR
MEMORANDUM OPINION AND ORDER
GRANTING RESPONDENT’S MOTION TO
DISMISS AND DISMISSING ACTION
WITH PREJUDICE

On July 13, 2016, Petitioner constructively filed a Petition

18 for Writ of Habeas Corpus by a Person in State Custody and
19 accompanying memorandum of points and authorities.2 Petitioner
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Many of Petitioner’s pleadings in state court refer to

22 him as “Bryant” Brim, not “Brian.” (See, e.g., Lodged Docs. 1, 3,
4, 7.)

His pleadings in this case distinctly read Brian, however,

23 so the Court has used that name.
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2
The Court adopts the signature date of the Petition as
the constructive filing date. See Houston v. Lack, 487 U.S. 266,
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276 (1988) (pro se prisoner constructively files pleading when he
delivers it to prison authorities for mailing); Roberts v.
Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (“When a prisoner
gives prison authorities a habeas petition or other pleading to
mail to court, the court deems the petition constructively ‘filed’
on the date it is signed.”).
1

1 is actually in federal custody (see Pet. at 1),3 but his Petition
2 challenges his 1988 conviction in Los Angeles County Superior
3 Court by guilty plea for possessing a controlled substance for
4 sale (id.).

Petitioner subsequently filed an “Election Regarding

5 Consent to Proceed Before a United States Magistrate Judge,”
6 indicating that he voluntarily consented to “have a United States
7 Magistrate Judge conduct all further proceedings in this case,
8 decide all dispositive and non-dispositive matters, and order the
9 entry of final judgment.”

On November 30, 2016, Respondent also

10 consented to proceed before the undersigned.
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On November 29, 2016, Respondent filed a motion to dismiss

12 the Petition on numerous grounds, including that it was untimely
13 by nearly two decades.

On December 15, 2016, Petitioner filed

14 opposition to the motion.
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Respondent did not file a reply.

For the reasons set forth below, the Court grants

16 Respondent’s motion to dismiss the Petition as untimely.

It

17 therefore does not address Respondent’s other arguments.4
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Throughout, the Court uses the pagination provided by its
Case Management/Electronic Case Filing system.
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One of those arguments is that Petitioner is no longer in
custody on the challenged conviction and thus that this Court lacks
jurisdiction. (Mot. Dismiss at 10-11.) Although that is likely
true (see Lodged Doc. 2 (state supreme court denying 2005 habeas
petition with case citation signaling that it found petitioner no
longer in custody on challenged conviction)), the record contains
some ambiguity concerning whether Petitioner was subject to a
parole term on the 1988 conviction and whether he has finished
serving it (see Pet., Mem. P. & A. at 20 (trial court telling
Petitioner that if he “should end up in state prison on this case
. . . you will be on parole”), Lodged Doc. 1, Ex. 1 (sentencing
Petitioner to state prison)). If Petitioner remains subject to a
parole term, he is “in custody.” See Murguia v. Martel, No. CV 09(continued...)
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BACKGROUND
On June 30, 1988, Petitioner pleaded guilty to possessing

3 for sale a controlled substance.

(See Pet’r’s Mem. P. & A., Ex.

4 B (guilty-plea transcript)); see also Cal. Health & Safety Code
5 § 11351.

He was sentenced to two years’ imprisonment.

(See

6 Lodged Doc. 1, Ex. 1 (abstract of judgment and sentencing
7 transcript).)

He did not appeal (Pet. at 1),5 and on March 28,

8 1990, he completed serving his sentence and began a 14-month
9 federal sentence (Lodged Doc. 4 at 7; Lodged Doc. 1, Ex. 1).

On

10 April 26, 1996, he was convicted in federal court of various drug
11 offenses and was later sentenced to life in prison.

United

12 States v. Brim, No. SACV 93-cr-0098-LHM (C.D. Cal. filed July 26,
13 1993).

His federal life sentence was apparently enhanced because

14 of his drug convictions in this case.

(See Lodged Doc. 1, Ex. 4

15 (portion of federal presentence report showing criminal-history16
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4

(...continued)

18 3054-ODW(E), 2009 WL 4980282, at *2-3 (C.D. Cal. Dec. 16, 2009)
(finding petitioner “in custody” on challenged conviction when he

19 had served prison sentence on that conviction but had not yet
20 served mandatory parole term and remained incarcerated on

different conviction); cf. United States v. Monreal, 301 F.3d 1127,

21 1130, 1132 (9th Cir. 2002) (finding defendant in custody with
respect to challenged federal conviction when he had served prison

22 term on that conviction but had not yet served period of supervised
release and was incarcerated for different conviction).

Moreover,

23 contrary to Respondent’s assertion (Mot. Dismiss at 11), Petitioner
24 does allude to being in custody based on an unexpired parole term
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(see Opp’n at 5 (“Custody does not require incarceration; it
includes probation[,] parole and other significant restraints on
liberty.”)). Because the Petition is clearly untimely, the Court
need not decide the custody issue.
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The Court’s review of the California Appellate Courts
Case Information website confirms that Petitioner did not appeal
the judgment.
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1 points calculation based on prior convictions); Lodged Doc. 7 at
2 8 (transcript of hearing on motion to vacate 1988 plea, noting
3 that “two state convictions” were used to enhance federal
4 sentence).)
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Beginning in 2001, Petitioner filed a series of habeas

6 petitions and other pleadings in state court challenging his 1988
7 convictions and sentence.

(See Lodged Docs. 3, 6, 7 at 5

8 (superior court noting that Petitioner had challenged his 1988
9 guilty plea five times since 2001), 9; see also Mot. Dismiss at
10 8-9 (laying out history of such pleadings).)6

His most recent

11 round of such petitions alleged that he deserved to be
12 resentenced under California’s Proposition 47, codified at Penal
13 Code section 1170.18, which gives state-court judges discretion
14 to reduce certain felony convictions to misdemeanors.
15 Lodged Docs. 9, 10, 11.)

(See

The state superior court ruled that

16 Petitioner was ineligible for resentencing under section 1170.18
17 because possession-with-intent-to-sell convictions are
18 statutorily barred from being reduced to misdemeanors.
19 Lodged Doc. 9.)

(See

The court of appeal found that the superior

20 court “properly denied” Petitioner’s petition for resentencing
21 (Lodged Doc. 10 at 2 (citing § 1170.18(b))), and the state
22 supreme court summarily denied review (Lodged Doc. 12).
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The Court’s review of the California Appellate Courts

27 Case Information website confirms that the earliest such petition
28 Petitioner filed in the state court of appeal or supreme court was
in 2002.
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PETITIONER’S CLAIMS

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I.

The trial court failed to inform Petitioner of the

3 nature of the crime to which he pleaded guilty.
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II.

The court’s participation in the “plea hearing”

5 violated Federal Rule of Criminal Procedure 11.
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(Pet. at 4.)

(Id.)

III. No factual basis for the guilty plea existed.

(Id. at

7 5.)
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IV.

Petitioner’s guilty plea was “ambiguous.”

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(Id.)7

DISCUSSION

10 I.

The Petition Is Untimely and Must Be Dismissed on that Basis

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A.

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The Antiterrorism and Effective Death Penalty Act sets forth

Applicable Law

13 a one-year limitation period for filing a federal habeas petition
14 and specifies that the period runs from the latest of the
15 following dates:
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(A)

the date on which the judgment became final by

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the conclusion of direct review or the expiration of the

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time for seeking such review;

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(B)

the date on which the impediment to filing an

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As noted, Petitioner’s most recent state-court filings

22 focused on his request to be resentenced under Proposition 47,
section 1170.18.

The claims in the Petition, on the other hand,

23 address the factual basis for why he contended in state court that
to be
directly
24 he deservedTo the resentenced and do not could be concern section
1170.18.
extent the Petition
interpreted as
25 raising the same claims as in his recent round of state-court
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petitions, it might not be untimely, but the claims would not be
cognizable on federal habeas review. See, e.g., Givens v. Muniz,
No. 2:16-cv-00249 TLN AC P, 2017 WL 387258, at *3 (E.D. Cal. Jan.
26, 2017) (citing cases holding that claims challenging denial of
resentencing under section 1170.18 are not cognizable on federal
habeas review and so holding).
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application created by State action in violation of the

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Constitution or laws of the United States is removed, if

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the applicant was prevented from filing by such State

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action;

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(C)

the date on which the constitutional right

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asserted was initially recognized by the Supreme Court,

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if the right has been newly recognized by the Supreme

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Court and made retroactively applicable to cases on

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collateral review; or

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(D)

the date on which the factual predicate of the

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claim or claims presented could have been discovered

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through the exercise of due diligence.

13 28 U.S.C. § 2244(d)(1).

AEDPA extended the limitation period for

14 those whose convictions became final before its enactment in 1996
15 to one year after its effective date – or until April 24, 1997.
16 See United States v. Gamboa, 608 F.3d 492, 493 n.1 (9th Cir.
17 2010).
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AEDPA includes a statutory tolling provision that suspends

19 the limitation period for the time during which a properly filed
20 application for postconviction or other collateral review is
21 pending in state court.

§ 2244(d)(2); see Waldrip v. Hall, 548

22 F.3d 729, 734 (9th Cir. 2008).

In addition to statutory tolling,

23 federal habeas petitions are subject to equitable tolling of the
24 one-year limitation period in appropriate cases.
25 Florida, 560 U.S. 631, 645 (2010).

Holland v.

Determining whether equitable

26 tolling is warranted is a fact-specific inquiry.

Frye v.

27 Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (as amended).

The

28 petitioner must show that (1) he has been pursuing his rights
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1 diligently and (2) some extraordinary circumstance stood in his
2 way and prevented timely filing.
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Holland, 560 U.S. at 649.

As to both statutory and equitable tolling, a petitioner

4 bears the burden of demonstrating that AEDPA’s limitation period
5 was sufficiently tolled.

Pace v. DiGuglielmo, 544 U.S. 408, 418

6 (2005) (equitable tolling); Smith v. Duncan, 297 F.3d 809, 814
7 (9th Cir. 2002) (as amended) (statutory tolling), abrogation on
8 other grounds recognized by Moreno v. Harrison, 245 F. App’x 606,
9 608 (9th Cir. 2007).
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B.

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Under California law in effect at the time of Petitioner’s

Limitation Period

12 conviction, an appeal — for which Petitioner would likely have
13 needed a certificate of probable cause — had to be filed within
14 60 days of judgment.

See Cal. R. Ct. 31 (repealed).

15 did not appeal his convictions.

(See Pet. at 1.)

Petitioner

Consequently,

16 “the date on which the judgment became final by conclusion of
17 direct review or the expiration of the time for seeking such
18 review” was sometime in early 1989, 60 days after he was
19 sentenced, in February 1989.
20 1, Ex. 1).

§ 2244(d)(1)(A); (see Lodged Doc.

Although Petitioner’s one-year limitation period

21 would normally have begun to run then, AEDPA extended the end of
22 the limitation period to April 24, 1997, for those convicted
23 before its enactment.

Gamboa, 608 F.3d at 493 n.1.

Petitioner

24 did not file his federal Petition until nearly two decades later.
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Unless Petitioner can show a later accrual date under

26 § 2244(d)(1)(B), (C), or (D) or statutory or equitable tolling of
27 the limitation period, his Petition must be dismissed as
28 untimely.
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C.

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Petitioner does not point to any State-created impediment

Later Accrual Date

3 that prevented him from earlier raising his claims, nor does he
4 rely on a newly recognized constitutional right.

Thus, he is not

5 entitled to a later trigger date under § 2244(d)(1)(B) or (C).
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As for § 2244(d)(1)(D), Petitioner’s claims all center on

7 his contention that he never pleaded guilty to possession for
8 sale of a controlled substance but rather only to straight
9 possession.

He rests his argument on the allegedly ambiguous

10 nature of a portion of the plea colloquy:
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THE COURT: Are you pleading guilty because you possessed

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cocaine for sale on February 22nd, 1987?

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you possess the cocaine with the intent to sell it?

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THE DEFENDANT: I possessed it.

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THE COURT: Pardon?

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THE DEFENDANT: Huh-uh, (Negative).

Did you?

Did

17 (Pet., Mem. P. & A. at 3, 21; see also id. at 3-10 (memorandum’s
18 argument section, resting on quoted portion of plea colloquy).)
19 The trial court did not follow up on this point with Petitioner.
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But these facts were necessarily known to Petitioner as soon

21 as he pleaded guilty.

Accordingly, he is not entitled to a later

22 trigger date under § 2244(d)(1)(D), either.

See Hasan v. Galaza,

23 254 F.3d 1150, 1154 n.3 (9th Cir. 2001) (holding that limitation
24 period begins running when petitioner knows or through diligence
25 could have discovered important facts, not when he recognizes
26 their legal significance).
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For all these reasons, Petitioner is not entitled to a later

28 trigger date of the limitation period.
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D.

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Petitioner is not entitled to any statutory tolling because

Statutory Tolling

3 he did not file his first state-court habeas petition until
4 December 2001 (see Lodged Doc. 3 at 2), more than four years
5 after the limitation period had expired.

See Ferguson v.

6 Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding that
7 § 2244(d) “does not permit the reinitiation of the limitations
8 period that has ended before the state petition was filed” even
9 if state petition was timely filed).
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Accordingly, statutory tolling does not render the Petition

11 timely.
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E.

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Petitioner has not offered any basis for equitable tolling,

Equitable Tolling

14 as was his burden, and the record reveals none.

In 2009, in

15 ruling on one of Petitioner’s challenges to his sentence, the
16 state court of appeal noted that he had offered no explanation
17 for his years of delay in bringing his claim.
18 4.)

(Lodged Doc. 3 at

And in his opposition to the motion to dismiss, Petitioner

19 does not even address the timeliness of the Petition.
20 Accordingly, equitable tolling cannot save the Petition.
21 II.

Conclusion

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The Petition is untimely by nearly 20 years and must be

23 denied on that basis.

The Court therefore does not address

24 Respondent’s other arguments for why it should be dismissed.8
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To the extent the Petition can be interpreted to claim
that Petitioner is “actually innocent” of his crimes of conviction,
he still cannot escape the timeliness bar. A petitioner seeking to
proceed under the actual-innocence exception must present new
evidence demonstrating his innocence. See Schlup v. Delo, 513 U.S.
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ORDER
IT IS ORDERED that Respondent’s motion to dismiss the

3 Petition is granted and Judgment be entered denying the Petition
4 and dismissing this action with prejudice.
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6 DATED: February 10, 2017
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JEAN ROSENBLUTH
U.S. MAGISTRATE JUDGE

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27 298, 324 (1995). Petitioner has presented no evidence of any kind
that he is actually innocent; he claims merely a
28 demonstrating plea proceeding.
defect in his
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