Boulware v. Marshall
| Decision Date | 09 December 2008 |
| Docket Number | No. CV 08-4665-R(E).,CV 08-4665-R(E). |
| Citation | 621 F.Supp.2d 882 |
| Parties | Ruben Odell BOULWARE, Petitioner, v. John MARSHALL, Warden, Respondent. |
| Court | U.S. District Court — Central District of California |
Ruben Odell Boulware, San Luis Obispo, CA, pro se.
Michael Robert Johnsen, Office of Attorney General of California, Los Angeles, CA, for Respondent.
ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court approves and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein by United States mail on Petitioner and counsel for Respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Manuel L. Real, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on July 17, 2008. Respondent filed an Answer on October 7, 2008. The Answer does not address the merits of Petitioner's claims. The Answer contends that the Petition is unexhausted only because Petitioner presently has pending a habeas corpus petition in the San Luis Obispo County Superior Court. Petitioner filed a Reply on October 24, 2008. On October 27, 2008, Petitioner filed: (1) a "Notice and Motion for Judicial Notice, etc."; and (2) a Traverse on the merits.
A jury found Petitioner guilty of two counts of worker's compensation fraud in violation of California Insurance Code section 1871.4(a)(1) (Counts 1 and 2), and one count of insurance fraud in violation of California Penal Code section 550(a)(1) (Count 4) (see Respondent's Lodgment 10, p. 2; People v. Boulware, 2008 WL 963000, at *1 (Cal.Ct.App.2d Dist. Apr. 10, 2008)). The jury found that Petitioner had suffered four prior convictions qualifying as "strikes" under California's Three Strikes Law, California Penal Code sections 667(b)—(i) and 1170.12(a)—(d) (Respondent's Lodgment 10, p. 2; People v. Boulware, 2008 WL 963000, at *1). Pursuant to People v. Superior Court (Romero), 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 (1996), the trial court struck three of the prior convictions (Respondent's Lodgment 10, p. 2; People v. Boulware, 2008 WL 963000, at *1).
California law provides that, except as otherwise prescribed by law, and subject to the provisions of California Penal Code section 654,1 where a person is convicted of multiple felonies, the court may impose sentence for a specified principal term and impose a consecutive sentence of one-third the midterm on the subordinate term or terms. See Cal.Penal Code § 1170.1(a). In Petitioner's case, the court selected Count 1 as the principal term, chose the upper term of five years on Count 1, and then doubled that term pursuant to the Three Strikes Law, California Penal Code sections 667(e)(1) and 1170.12(c)(1) (see Respondent's Lodgment 10, p. 2; People v. Boulware, 2008 WL 963000, at *1). Id. The court imposed and stayed sentence on Count 2 (see Respondent's Lodgment 10, p. 2; People v. Boulware, 2008 WL 963000, at *1). On Count 4, the court selected a consecutive subordinate term of one-third of the middle term of three years, i.e., one year, doubled that term pursuant to the Three Strikes Law, and ordered the resulting two-year term to be served consecutively (see Respondent's Lodgment 10, p. 2; People v. Boulware, 2008 WL 963000, at *1). Petitioner thus received a total prison term of twelve years (see Respondent's Lodgment 10, p. 2; People v. Boulware, 2008 WL 963000, at *1).
After exhausting state remedies, Petitioner filed a habeas corpus petition in this court on June 15, 2006, in Boulware v. Ollison, CV 06-3744-R (E). On November 17, 2006, the Magistrate Judge issued a Report and Recommendation recommending that the Court issue an order conditionally granting habeas relief with respect to Petitioner's convictions for workers' compensation fraud (Counts 1 and 2) on the ground of instructional error, and otherwise denying the Petition with prejudice. On January 4, 2007, the District Court issued an Order adopting the Report and Recommendation. On January 5, 2007, the Court entered a Judgment providing:
Pursuant to the Order of the Court Adopting the Findings, Conclusions and Recommendations of the United States Magistrate Judge, IT IS ADJUDGED that: (a) a conditional writ of habeas corpus is granted with respect to Petitioner's convictions on Counts One and Two of the Amended Information in Los Angeles County Superior Court Case No. BA241306, and thus Respondent shall discharge Petitioner from all adverse consequences of those convictions, unless Petitioner is brought to retrial on Counts One and Two within ninety (90) days of the date the Judgment herein becomes final, plus any additional delay authorized under State law; and (b) the Petition is otherwise denied and dismissed with prejudice.
On March 7, 2007, the Los Angeles County Superior Court called the case for further proceedings in People v. Boulware, case number BA241306 (Clerk's Transcript ["C.T."] 75). However, Petitioner did not appear and the matter was continued (C.T. 75). On March 8, 2007, Petitioner appeared and was rearraigned on Counts 1, 2 and 4 (C.T. 76).
On May 2, 2007, the prosecution announced it was unable to proceed on Counts 1 and 2, and the court dismissed those counts (Reporter's Transcript ["R.T."] 2-3; C.T. 85-86). The court indicated it would resentence Petitioner on Count 4 (R.T. 3, 4). The court imposed the upper term of five years on Count 4, doubled to ten years pursuant to the Three Strikes Law (R.T. 7-8; C.T. 85-87, 87A).
On May 16, 2007, Petitioner filed a Petition for Writ of Mandate in the California Court of Appeal (Respondent's Lodgment 1). On June 26, 2007, the California Court of Appeal denied the Petition for Writ of Mandate summarily (Respondent's Lodgment 2).
Meanwhile, on June 20, 2007, Petitioner filed a Motion to Reopen in Boulware v. Ollison, arguing that the state court violated this Court's Judgment in Boulware v. Ollison by waiting too long to dismiss Counts 1 and 2 and by resentencing Petitioner. On August 22, 2007, this Court denied the Motion to Reopen.2 See Boulware v. Ollison, 504 F.Supp.2d 901 (C.D.Cal.2007).
Petitioner, represented by counsel, appealed his state court resentencing. Petitioner also filed a pro se petition for habeas corpus which the Court of Appeal consolidated with Petitioner's direct appeal (see Respondent's Lodgment 11; Traverse, pp. 23-24).3 On April 10, 2008, the Court of Appeal issued an opinion affirming the judgment, and a separate order denying Petitioner's companion petition for writ of habeas corpus (Respondent's Lodgments 10, 12).
On June 12, 2007, while Petitioner's direct appeal was pending, Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court . On July 25, 2007, the Superior Court issued a written order denying the petition (see Respondent's Lodgment 11, Ex. D).
On December 17, 2007, while Petitioner's direct appeal was pending, Petitioner filed a habeas corpus petition in the Court of Appeal (Respondent's Lodgment 17). On January 8, 2008, the Court of Appeal denied the petition summarily (Respondent's Lodgment 18). On January 18, 2008, Petitioner filed a pro se petition for review in the California Supreme Court, which that court denied summarily on March 12, 2008 (Respondent's Lodgments 19, 22).
Meanwhile, on February 26, 2008, Petitioner filed a "Notice of Motion to Vacate Judgment, etc." in the Court of Appeal, challenging Petitioner's conviction for insurance fraud (Respondent's Lodgment 23). On March 4, 2008, the Court of Appeal denied the petition summarily (Respondent's Lodgment 24).
On April 18, 2008, following the Court of Appeal's decision affirming the judgment on direct appeal, Petitioner's appellate counsel filed a petition for review in the California Supreme Court (Respondent's Lodgment 13). On June 18, 2008, the California Supreme Court denied review summarily (Respondent's Lodgment 14).
On June 25, 2008, Petitioner filed a Complaint in the San Luis Obispo County Superior Court against the Los Angeles County District Attorney, the California Commissioner of Insurance, a fraud investigator for the Department of Insurance, and the Warden at Petitioner's place of incarceration, challenging the constitutionality of the insurance fraud statute, California Penal Code section 550, pursuant to which Petitioner was convicted on Count 4 (Respondent's Lodgment 25). The state defendants in that action have filed a demurrer, set for hearing on November 6, 2008 (Respondent's Lodgment 26).
Petitioner contends:4
1. The imposition of an upper term sentence allegedly violated the Sixth Amendment as interpreted in Apprendi v. New Jersey,5 Blakely v. Washington,6 and Cunningham v. California;7
2. The trial court allegedly violated the Ex Post Facto Clause by applying California Senate Bill 40 to impose an upper term sentence;
3. Petitioner's trial counsel allegedly rendered ineffective assistance, assertedly by: (a) failing to request Petitioner's release from custody following the expiration of ninety days from this Court's January 5, 2007 Judgment; and (b) failing to object to the imposition of an upper term sentence; and
4. Petitioner...
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