Ralbovsky v. Kane
| Citation | 407 F.Supp.2d 1142 |
| Decision Date | 16 December 2005 |
| Docket Number | No. 04-1041-CJC (RC).,04-1041-CJC (RC). |
| Court | United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California |
| Parties | Timothy Peter RALBOVSKY, aka James J. Ralbovski, aka James J. Ralbovsky, aka Timothy Ralbovski, Petitioner, v. A.P. KANE, Warden, Respondent. |
Timothy Peter Ralbovsky, pro se.
Taylor T. Nguyen, Deputy Attorney General, San Diego, CA, for respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, as well as petitioner's objections, and has made a de novo determination.
IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) Judgment shall be entered denying the petition for writ of habeas corpus and dismissing the action with prejudice.
IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on the parties.
IT IS ADJUDGED that the petition for writ of habeas corpus is denied and the action is dismissed with prejudice.
This Report and Recommendation is submitted to the Honorable Cormac J. Carney, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 01-13 of the United States District Court for the Central District of California.
On April 26, 2002, in Orange County Superior Court case nos. 01HF0611 and 01CF2107, petitioner Timothy Peter Ralbovsky, aka James J. Ralbovski, aka James J. Ralbovksy, aka Timothy Ralbovski, pursuant to written plea agreements, pleaded guilty to, and was convicted of, one count of sale or transportation of a controlled substance in violation of California Health & Safety Code ("H.S.C.") § 11352(a), one count of unlawful taking of vehicle in violation of California Vehicle Code § 10851(a), one count of receiving stolen property in violation of California Penal Code ("P.C.") § 496(a), one count of possession of a controlled substance in violation of H.S.C. § 11350(a), and one count of being under the influence of a controlled substance in violation of H.S.C. § 11550(a), and petitioner also admitted he had six prior "strike" convictions within the meaning of California's Three Strikes law, P.C. §§ 667(b)-(i) and 1170.12(a)-(d), and three prior convictions for which he served a prison term and did not remain free of custody for five years thereafter within the meaning of P.C. § 667.5(b). Lodgment nos. 3-4, 23 at 4-9. Pursuant to the plea agreements, the trial court struck five of petitioner's prior "strike" convictions under People v. Superior Court (Romero), 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 (1996), and sentenced petitioner to 14 years and eight months in state prison. Lodgment nos. 4-5, 23 at 1-3, 9-11.
On December 5, 2002, petitioner filed a habeas corpus petition in the Orange County Superior Court challenging his convictions and sentence, and that petition was denied in a written opinion on January 3, 2003. Lodgment nos. 6-7, 24. On January 28, 2003, petitioner filed a habeas corpus petition in the California Court of Appeal, which denied the petition on April 10, 2003. Lodgment nos. 8-9. On August 21, 2003, petitioner filed a habeas corpus petition in the California Supreme Court, which denied the petition on June 9, 2004. Lodgment nos. 10, 19-20.1
In pleading guilty to the charge of sale of a controlled substance, petitioner admitted that, "[o]n 3/19/2001[,] in Orange County, [he] willfully [and] unlawfully sold a usable amount of heroin." Lodgment no. 3 at 5. As to the other charges, petitioner admitted:
On May 9, 2001, in Orange County, I willfully [and] unlawfully drove [and] possessed a 1999 Honda Civic without the consent of the owner [and] with the intent to temporarily or permanently deprive the owner of title or possession [and] knowing that vehicle to be stolen; I also willfully [and] unlawfully possessed a usable amount of heroin, [and] was under the influence of heroin.
On August 25, 2004, petitioner, proceeding pro se, filed the pending petition for writ of habeas corpus under 28 U.S.C. § 2254, challenging his convictions and sentence. On December 13, 2004, respondent filed a motion to dismiss, arguing the petition is a "mixed" petition containing an unexhausted claim. However, on January 4, 2005, this Court denied respondent's motion to dismiss and ordered respondent to address the merits of petitioner's claims. On February 4, 2005, respondent filed an answer to the petition, and on May 29, 2005, petitioner filed a reply.
Petitioner raises the following claims for federal habeas relief in the pending petition:
Ground One — Petitioner's trial counsel was ineffective for: (a) failing to appear at arraignments and failing to make "beneficial" pretrial motions; (b) failing to investigate and obtain facts and evidence beneficial to petitioner's case; (c) failing to investigate a favorable and available alibi witness; (d) failing to challenge substantive and procedural defects in the prosecution's case and abandoning petitioner "at a critical stage of the pre-trial and sentencing proceedings"; (e) coercing petitioner to plead guilty "because he — trial counsel — was unprepared for, and, unwilling to prepare for trial"; (f) failing to investigate all available defenses before advising petitioner to plead guilty; (g) failing to determine that one or more sentencing enhancements were invalid; (h) failing to challenge petitioner's erroneous probation report; (i) failing to consult with petitioner about the appeal process and failing to file a notice of appeal; (j) failing to subject the prosecution's case "to a reasonable adversarial test"; and (k) failing "to abstain from ex parte communications — detrimental to petitioner — with the prosecution" (Petition at 6, 6a);
Ground Two — The trial court violated petitioner's right to due process by imposing an aggregate sentence in excess of that authorized by statute (Petition at 6);
Ground Three — The trial court violated petitioner's due process rights by using one prior conviction to impose two separate sentence enhancements (Petition at 6-7);
Ground Four — The trial court violated petitioner's rights to due process and a jury trial by imposing the "aggravated/upper" term of five years on the principal count (Petition at 7);
Ground Five — The trial court violated petitioner's due process rights by imposing consecutive rather than concurrent sentences, resulting in an aggregate sentence in excess of that authorized by statute (Petition at 7a);
Ground Six — Petitioner's convictions are invalid because they are the product of guilty pleas that were not voluntary and intelligent (Petition at 7b-7d);
Ground Seven — The enhancement of petitioner's current sentence under the Three Strikes law by a prior conviction (plea) in which the underlying criminal conduct occurred prior to the enactment of the Three Strikes law violates petitioner's prior plea agreement (Petition at 7e-7f);
Ground Eight — The enhancement of petitioner's current sentence under the Three Strikes law is unconstitutional because the Three Strikes law is "void for vagueness" (Petition at 7g);
Ground Nine — The enhancement of petitioner's current sentence under the Three Strikes law violates the equal protection clause (Petition at 7h-7i);
Ground Ten — The enhancement of petitioner's current sentence under the Three Strikes law as a result of prior convictions in which the criminal conduct occurred prior to the enactment of the Three Strikes law violates the ex post facto clause (Petition at 7j);
Ground Eleven — The enhancement of petitioner's current sentence under the Three Strikes law is unconstitutional because the Three Strikes law violates the separation of powers doctrine (Petition at 7k) Ground Twelve — The enhancement of petitioner's current sentence under the Three Strikes law violates the double jeopardy clause (Petition at 71-7n);
Ground Thirteen — The California Department of Corrections is violating petitioner's rights to due process and equal protection by improperly limiting the amount of post-sentence conduct credit petitioner can earn (Petition at 7o-7p); and
Ground Fourteen — The California courts violated petitioner's right to due process by denying him "a complete and meaningful review" of the claims raised in his various habeas corpus petitions (Petition at 7q).
The procedural default doctrine "bar[s] federal habeas [review] when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991); Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir.2001). "[T]he procedural default doctrine is a specific application of the general adequate and independent state grounds doctrine." Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir.1994); Fields v. Calderon, 125 F.3d 757, 761-62 (9th Cir.1997), cert. denied, 523 U.S. 1132, 118 S.Ct. 1826, 140 L.Ed.2d 962 (1998). Under the adequate and independent state grounds doctrine, federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the...
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