Dudney

MEMORANDUM **

Thomas Loyd Dudney, a state prisoner, appeals from the district court’s denial of his petition for a writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we reverse.

In 1974, Dudney pleaded guilty to and was convicted of assault with a deadly weapon. In 1999, Dudney was charged and convicted by jury of one count of possession and one count of transportation of methamphetamine, violations of California Health and Safety Code §§ 11377(a) and 11379(a), respectively. After Dudney waived his statutory right to a jury trial on the existence of the prior serious felony, the state tried the issue of whether the 1974 conviction was a “serious felony” under California’s Three Strikes law. See Cal.Penal Code § § 667, 1170.12, 1192.7; see also Ewing v. California, 538 U.S. 11, 14-17 , 123 S.Ct. 1179 , 155 L.Ed.2d 108 (2003). The state court found that Dudney had personally used a firearm in the 1974 assault, despite the abstract of judgment that specifically stated that Dudney was not charged with and did not admit to being armed with a deadly weapon, nor was he found to have been so armed. Because assault with a deadly weapon is a “serious felony”…