Filed: Sep. 04, 2019
Latest Update: Sep. 04, 2019
Summary: FINDINGS AND RECOMMENDATIONS KENDALL J. NEWMAN , Magistrate Judge . In 2011, movant was convicted in this court of conspiring to manufacture marijuana. (ECF No. 100.) Pending before the court is movant's motion to dismiss his conviction filed July 12, 2019. (ECF No. 144.) For the reasons stated herein, the undersigned recommends that movant's motion be denied. The pending motion is brought pursuant to California Health and Safety Code 11361.8, i.e., Proposition 64. ( Id. ) On November 8,
Summary: FINDINGS AND RECOMMENDATIONS KENDALL J. NEWMAN , Magistrate Judge . In 2011, movant was convicted in this court of conspiring to manufacture marijuana. (ECF No. 100.) Pending before the court is movant's motion to dismiss his conviction filed July 12, 2019. (ECF No. 144.) For the reasons stated herein, the undersigned recommends that movant's motion be denied. The pending motion is brought pursuant to California Health and Safety Code 11361.8, i.e., Proposition 64. ( Id. ) On November 8, ..
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FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, Magistrate Judge.
In 2011, movant was convicted in this court of conspiring to manufacture marijuana. (ECF No. 100.) Pending before the court is movant's motion to dismiss his conviction filed July 12, 2019. (ECF No. 144.) For the reasons stated herein, the undersigned recommends that movant's motion be denied.
The pending motion is brought pursuant to California Health and Safety Code § 11361.8, i.e., Proposition 64. (Id.) On November 8, 2016, California voters passed Proposition 64, which decriminalized marijuana. It also provided that,
[a] person who has completed his ... sentence for a conviction under Sections 11357, 11358, 11359, and 11360, whether by trial or open or negotiated plea, who would not have been guilty of an offense or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the conviction dismissed and sealed because the prior conviction is now legally invalid or redesignated as a misdemeanor or infraction in accordance with Sections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as those sections have been amended or added by that act.
Cal. Health & Safety Code § 11361.8(e).
Proposition 64 is not applicable to movant's conviction because movant was convicted of violating federal law. The procedures contained in Proposition 64 for reducing and dismissing marijuana-related convictions are applicable to state law convictions only. For this reason, the undersigned recommends that movant's motion for dismissal of his conviction be denied.
Accordingly, IT IS HEREBY RECOMMENDED that movant's motion for dismissal of his conviction (ECF No. 144) be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, movant may file written objections with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." If movant files objections, he shall also address whether a certificate of appealability should issue and, if so, why and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(3). Movant is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
