Timothy Peter Ralbovsky v. I D Clay, No. 8:2008cv01376 - Document 3 (C.D. Cal. 2008)

Court Description: MEMORANDUM AND OPINION by Judge Cormac J. Carney; IT IS HEREBY ORDERED that Judgment be entered SUMMARILY DISMISSING the habeas petition and action for lack of subject matter jurisdiction. (jy)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 TIMOTHY PETER RALBOVSKY, aka JAMES J. RALBOVSKI, aka JAMES J. RALBOVSKY, aka TIMOTHY RALBOVSKI, 13 Petitioner 14 vs. 15 I.D. CLAY, WARDEN, Respondent. 16 ) Case No. SACV 08-1376-CJC(RC) ) ) ) ) OPINION AND ORDER ON A ) PETITION FOR HABEAS CORPUS ) ) ) ) ) ) 17 18 On December 4, 2008, petitioner Timothy Peter Ralbovsky, aka 19 James J. Ralbovski, aka James J. Ralbovksy, aka Timothy Ralbovski, a 20 person in state custody proceeding pro se, filed a petition for writ 21 of habeas corpus under 28 U.S.C. § 2254 challenging his 2002 sentence 22 on multiple drug offenses and other offenses,1 following a guilty plea 23 1 24 25 26 27 28 Petitioner was convicted of sale or transportation of a controlled substance in violation of California Health & Safety Code ( H.S.C. ) § 11352(a), 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), possession of a controlled substance in violation of H.S.C. § 11350(a), and 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 1 in Orange County Superior Court case nos. 01HF0611 and 01CF2107, on 2 the sole ground the California Supreme Court refused to comply with 3 the United States Supreme Court s Order granting petitioner habeas 4 relief and remanding his case for further consideration in light of 5 Cunningham v. California, 549 U.S. [270, 127 S. Ct. 856, 166 L. Ed. 2d 6 856] (2007). Petition at 5, Exhibit A. 7 8 DISCUSSION 9 This Court, pursuant to Federal Rule of Evidence 201, takes 10 judicial notice of the records in a previous federal habeas corpus 11 action brought by petitioner: Ralbovsky v. Kane, case no. SACV 04- 12 1041-CJC(RC) ( Ralbovsky I ). The records in Ralbovsky I show that on 13 August 25, 2004, petitioner filed a petition for writ of habeas corpus 14 under 28 U.S.C. § 2254 challenging his 2002 convictions and sentence 15 in Orange County Superior Court case nos. 01HF0611 and 01CF2107 on 16 fourteen grounds, and on December 19, 2005, Judgment was entered 17 denying the habeas petition on the merits. 18 appeal, and on August 1, 2006, the Ninth Circuit granted petitioner s 19 request for a certificate of appealability on one claim. 20 an unpublished opinion filed April 16, 2007, the Ninth Circuit 21 affirmed the Judgment. 22 Cir. 2007) (unpublished disposition). 23 // Petitioner filed an However, in Ralbovsky v. Kane, 227 Fed. Appx. 691 (9th 24 25 26 27 28 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). These facts are based on petitioner s previous habeas corpus petition, Ralbovsky v. Kane, case no. SACV 04-1041-CJC(RC), discussed herein. 2 1 The instant petition is governed by the provisions of Section 106 2 of the Antiterrorism and Effective Death Penalty Act of 1996 ( the 3 Act ), which provides, in pertinent part: 4 successive application permitted by this section is filed in the 5 district court, the applicant shall move in the appropriate court of 6 appeals for an order authorizing the district court to consider the 7 application. 8 an allocation of subject-matter jurisdiction to the court of appeals. 9 A district court must dismiss a second or successive petition [. . .] 28 U.S.C. § 2244(b)(3)(A). Before a second or Section 2244(b)(3)(A) is 10 unless the court of appeals has given approval for the filing. 11 re Page, 170 F.3d 659, 661 (7th Cir. 1999) (quoting Nunez v. United 12 States, 96 F.3d 990, 991 (7th Cir. 1996)), cert. denied, 528 U.S. 1162 13 (2000); see also Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 14 2001)( When the [Act] is in play, the district court may not, in the 15 absence of proper authorization from the court of appeals, consider a 16 second or successive habeas application. 17 Magnusson, 177 F.3d 43, 46 (1st Cir. 1999)). 18 successive habeas petition is not a matter of right -- and the 19 gatekeeping function belongs to the Court of Appeals, not to the 20 district court. 21 135 L. Ed. 2d 827 (1996). In (quoting Libby v. Under the Act, a Felker v. Turpin, 518 U.S. 651, 661, 116 S. Ct. 2333, 22 23 Here, it plainly appears on the face of the pending petition that 24 petitioner has not received authorization from the Ninth Circuit Court 25 of Appeals for the instant, successive petition to be brought. 26 this Court must dismiss the instant habeas corpus petition as a 27 successive petition for which it lacks subject matter jurisdiction 28 under 28 U.S.C. § 2244(b)(3). 3 Thus, Moreover, petitioner s claim that the California Supreme Court 1 2 has failed to act following remand from the United States Supreme 3 Court is clearly without merit. 4 instant petition include the California Supreme Court s decision of 5 December 12, 2007, denying petitioner s habeas corpus petition on the 6 merits. 7 contrary to petitioner s claim, the California Supreme Court did 8 consider petitioner s Cunningham claim following remand from the 9 United States Supreme Court and denied that claim on the merits. Rather, the attachments to the See California Supreme Court case no. S132837. Thus, See 10 Petition, Exhibit A. The United States Supreme Court did not order 11 the California Supreme Court to grant habeas relief to petitioner; it 12 merely ordered the California Supreme Court to consider petitioner s 13 claim -- which the California Supreme Court considered and then 14 denied. 15 16 Rule 4 of the Rules Governing Section 2254 Cases in the United 17 States Courts provides that [i]f it plainly appears from the face of 18 the petition and any attached exhibits that the petitioner is not 19 entitled to relief in the district court, the judge must dismiss the 20 petition and direct the clerk to notify the petitioner. 21 pending habeas corpus petition should be summarily dismissed for lack 22 of subject matter jurisdiction. Thus, the 23 24 ORDER 25 IT IS HEREBY ORDERED that Judgment be entered SUMMARILY 26 DISMISSING the habeas petition and action for lack of subject matter 27 jurisdiction. 28 // 4 1 2 IT IS FURTHER ORDERED that the Clerk shall notify petitioner of this Opinion and Order. 3 4 DATE: December 9, 2008 CORMAC J. CARNEY UNITED STATES DISTRICT JUDGE 5 6 PRESENTED BY: 7 DATE: December 5, 2009 8 /S/ Rosalyn M. Chapman ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE 9 10 R&R-MDO\08-1376.mdo 11 12/5/08 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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