Second Strike Error May Unravel Life Sentence

     (CN) – Finding that a prosecutor, a judge and California’s appellate courts all failed a man serving life in prison under the three-strikes law, the 9th Circuit granted him a new hearing Thursday.
     Brian Dubrin pleaded no contest in 2000 to making criminal threats, but he did so only after the prosecutor and judge in the case told him that the charge would not count as a strike. Dubrin already had one strike against him thanks to a 1997 assault conviction.
     It just so happened, however, that Dubrin’s plea hearing took place the day after California voters had approved Proposition 21, which expanded the number of crimes eligible for strikes. Both the prosecutor and the judge assured Dubrin that, even if making criminal threats made the new list, it would not apply retroactively.
     “As it turned out, both the prosecutor and the judge were wrong,” Judge Paul Watford wrote for the Pasadena-based federal appeals court.
     Five years later, after release from jail, Dubrin filed a pro se habeas petition with the California Court of Appeal and the California Supreme Court. The petition went nowhere, however, because the courts found that he was no longer in custody and thus ineligible for relief.
     “The state appellate courts, too, were wrong,” Watford wrote.
     In truth, Dubrin was still technically in custody because he was on parole when he filed the petitions.
     Perhaps none of this would have mattered, though, if Dubrin hadn’t, in 2008, logged another felony conviction, a third strike and a sentence of 25 years to life.
     Dubrin then decided to renew his habeas petition challenging the life sentence as unconstitutional, arguing that the second of his three strikes was fatally flawed.
     U.S. District Judge Cormac Carney denied the petition in Los Angeles, but the appellate panel unanimously reversed on Thursday.
     “By 2005, Dubrin had been released from prison, but he was still on parole for his criminal threats conviction and remained so until 2007,” the ruling states. “Thus, for purposes of obtaining habeas relief, he remained ‘in custody’ and his claims should not have been rejected on this threshold ground.”
     Watford added that a pro se 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.”
     The panel also suggested that the District Court should appoint counsel if Dubrin will allow it.
     “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,” Watford wrote.

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