Brian Dubrin v. People of the State of Califor
2013 U.S. App. LEXIS 12561
| 9th Cir. | 2013Background
- In 2000 Dubrin pleaded no contest to making criminal threats (Cal. Penal Code § 422). At plea, prosecutor and judge told him that conviction would not count as a "strike" under California’s three-strikes law after Prop 21.
- Prop 21, approved the day before his plea, in fact added § 422 as a strike and applied retroactively; Dubrin had a prior 1997 strike, so this status was critical.
- Dubrin filed pro se state habeas petitions in 2004–05 challenging the 2000 conviction; state appellate courts summarily denied them as moot because he was told he was not "in custody." He was on parole until 2007.
- In 2008 Dubrin was convicted of new felonies and sentenced under California’s three-strikes law using the 1997 and 2000 convictions as prior strikes; state courts rejected his challenges on the merits or summarily denied habeas.
- In 2010 Dubrin filed a pro se federal § 2254 petition construed to attack the 2008 enhanced sentence as based on the allegedly unconstitutional 2000 prior conviction.
- The Ninth Circuit held that an exception to Lackawanna County permits § 2254 review when a petitioner, through no fault of his own, was denied a full and fair opportunity for state-court review (here, state courts wrongly refused to reach the merits because they misadvised Dubrin he was not in custody) and remanded for further proceedings (including correction of respondent naming and possible appointment of counsel).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether federal § 2254 may be used to attack an expired prior conviction used to enhance a current sentence | Dubrin: Yes, because state courts refused to adjudicate his claim through no fault of his own (misadvised he was not in custody) | State: Generally barred by Lackawanna; prior expired convictions normally not subject to federal habeas | Held: Exception to Lackawanna applies where petitioner cannot be faulted for failing to obtain timely state review because state courts, without justification, refused to hear the claim; remand allowed |
| Whether Dubrin was "in custody" when he sought state habeas so that he could obtain state review | Dubrin: He remained in custody while on parole (until 2007) and was thus eligible | State: Argued he was not in custody when petitions filed (courts relied on that) | Held: He was in custody for habeas purposes (parole qualifies); state courts erred in refusing review |
| Whether petitioner’s pro se misnaming of respondent warrants dismissal | State: Petition named People of California instead of custodial official; should be dismissed | Dubrin: Error is technical and can be corrected; no prejudice to State | Held: Court rejected dismissal; district court should deem amended or permit amendment to name proper respondent |
| Whether counsel should be appointed on remand | Dubrin previously declined; nonetheless needed for fair adjudication | State: Not argued strongly | Held: Court suggested appointment of counsel if requested, to ensure issues are fully developed |
Key Cases Cited
- Lackawanna Cnty. Dist. Attorney v. Coss, 532 U.S. 394 (2001) (generally bars federal § 2254 challenges to expired prior convictions used for enhancement)
- Jones v. Cunningham, 371 U.S. 236 (1963) (parole constitutes custody for habeas purposes)
- Maleng v. Cook, 490 U.S. 488 (1989) (federal habeas may challenge current sentence even if it relies on an expired prior conviction)
- Stone v. Powell, 428 U.S. 465 (1976) (bar on federal habeas review of Fourth Amendment claims absent denial of full and fair state-court opportunity)
- Kremer v. Chemical Constr. Corp., 456 U.S. 461 (1982) (principles of claim preclusion and finality)
- Allen v. McCurry, 449 U.S. 90 (1980) (issue preclusion and related finality considerations)
- Danforth v. Minnesota, 552 U.S. 264 (2008) (habeas scope may be adjusted for equitable and prudential considerations)
- Lonchar v. Thomas, 517 U.S. 314 (1996) (equitable considerations in habeas relief)
- Stanley v. California Supreme Court, 21 F.3d 359 (9th Cir. 1994) (naming proper respondent is correctable technical defect)
- Ortiz-Sandoval v. Gomez, 81 F.3d 891 (9th Cir. 1996) (permitting amendment to correct respondent in habeas petitions)