Dubrin v. State of California

When a defendant is faultless in obtaining timely constitutional review of an expired prior conviction, they may challenge a later sentence which is enhanced by a conviction obtained on an unconstitutional basis.

Brian Dubrin petitioned pro se for a writ of habeas corpus while serving a three-strikes sentence in California. Dubrin pled no contest in 2000 to a charge of making criminal threats after he “confirmed” with the court it would not count as a strike enhancing potential future convictions. Dubrin later learned that the conviction did count as a strike. While on parole he was denied habeas review on the basis that habeas relief requires a person be “in custody.” He was subsequently convicted of his “third” strike in 2008. The Ninth Circuit held that when a defendant was faultless in obtaining timely constitutional review of an expired prior conviction, they may challenge a later sentence which is enhanced by a conviction obtained on an unconstitutional basis. The panel found the California courts erred in dismissing the defendant’s habeas petitions as he was “in custody,” because he appealed while still on parole from his 2000 conviction. The panel heard the defendant’s current appeal though he was no longer “in custody” on the original 2000 conviction, because he was in custody under the potentially tainted 2008 sentence. The panel sided with the Tenth Circuit in finding that the prudential considerations which justified a general rule denying review of expired prior convictions which enhance a later sentence, were not served under these circumstances. The panel stated that where a defendant, “did not receive a full and fair opportunity to obtain state-court review of his prior conviction […] federal habeas review of an expired prior conviction might be warranted […] when the defendant [could not be faulted] for failing to obtain timely review of a constitutional claim.” REVERSED and REMANDED.