Opinion
2:02-cv-2416-GEB-CMK-P.
May 11, 2009
ORDER
Petitioner is a state prisoner proceeding on his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner's habeas petition challenged his 1990 conviction of possession and transportation of methamphetamine with prior convictions. Petitioner appealed this court's denial of his petition. The Ninth Circuit Court of Appeals has issued a mandate reversing the denial of the petition, and remanded the case back to this court "with instructions to grant the habeas petition as to the imposition of the prior serious felony enhancement." (See Doc. 46, at 4).
The Ninth Circuit found Petitioner's prior conviction, from 1974, did not include the charge of personal use of a firearm. The 1974 state judge had struck that charge from the information. Therefore, the Ninth Circuit concluded, "no reasonable trier of fact could conclude that Dudney had been previously convicted of a prior serious felony, as required by California Penal Code § 667(a)(1)." (Id.) Accordingly, Petitioner needs to be re-sentenced.
Therefore, IT IS HEREBY ORDERED that:
1. Petitioner's Petition for Writ of Habeas Corpus is granted;
2. Petitioner shall be re-sentenced within 30 days of entry of final judgment herein; and
3. The Clerk of the Court is directed to enter final judgment and close this file.