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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BRIAN KEITH BRIM,1 12 Petitioner, 13 14 15 v. PEOPLE OF STATE OF CALIFORNIA, Respondent. 16 17 ) ) ) ) ) ) ) ) ) ) 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 20 21 1 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. 24 2 The Court adopts the signature date of the Petition as the constructive filing date. See Houston v. Lack, 487 U.S. 266, 25 26 27 28 276 (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. 11 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. 15 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 18 19 20 21 22 23 24 25 26 27 28 3 Throughout, the Court uses the pagination provided by its Case Management/Electronic Case Filing system. 4 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...) 2 1 2 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 17 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 25 26 27 28 (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. 5 The Court’s review of the California Appellate Courts Case Information website confirms that Petitioner did not appeal the judgment. 3 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).) 5 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). 23 24 25 26 6 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. 4 1 PETITIONER’S CLAIMS 2 I. The trial court failed to inform Petitioner of the 3 nature of the crime to which he pleaded guilty. 4 II. The court’s participation in the “plea hearing” 5 violated Federal Rule of Criminal Procedure 11. 6 (Pet. at 4.) (Id.) III. No factual basis for the guilty plea existed. (Id. at 7 5.) 8 IV. Petitioner’s guilty plea was “ambiguous.” 9 (Id.)7 DISCUSSION 10 I. The Petition Is Untimely and Must Be Dismissed on that Basis 11 A. 12 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: 16 (A) the date on which the judgment became final by 17 the conclusion of direct review or the expiration of the 18 time for seeking such review; 19 (B) the date on which the impediment to filing an 20 21 7 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 26 27 28 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). 5 1 application created by State action in violation of the 2 Constitution or laws of the United States is removed, if 3 the applicant was prevented from filing by such State 4 action; 5 (C) the date on which the constitutional right 6 asserted was initially recognized by the Supreme Court, 7 if the right has been newly recognized by the Supreme 8 Court and made retroactively applicable to cases on 9 collateral review; or 10 (D) the date on which the factual predicate of the 11 claim or claims presented could have been discovered 12 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). 18 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 6 1 diligently and (2) some extraordinary circumstance stood in his 2 way and prevented timely filing. 3 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). 10 B. 11 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. 25 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. 7 1 C. 2 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). 6 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: 11 THE COURT: Are you pleading guilty because you possessed 12 cocaine for sale on February 22nd, 1987? 13 you possess the cocaine with the intent to sell it? 14 THE DEFENDANT: I possessed it. 15 THE COURT: Pardon? 16 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. 20 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). 27 For all these reasons, Petitioner is not entitled to a later 28 trigger date of the limitation period. 8 1 D. 2 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). 10 Accordingly, statutory tolling does not render the Petition 11 timely. 12 E. 13 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 22 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 25 26 27 28 8 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. 9 1 2 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. 5 6 DATED: February 10, 2017 7 JEAN ROSENBLUTH U.S. MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 10

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