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Lesopravsky v. Warden

United States District Court, C.D. California

May 3, 2018

WARDEN, Respondent.




         On September 13, 2016, Petitioner, proceeding pro se, constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody.[1] On September 28, 2016, the Court dismissed the Petition with leave to amend because it was not on the required form and did not contain enough information for the Court to screen it. He filed a First Amended Petition on December 5, 2016. The FAP raises five claims challenging his 2014 superior-court convictions in case number PA077147 for transportation of marijuana and evading an officer. (FAP at 2, 5-7.) On March 6, 2017, Respondent moved to dismiss the FAP as fully unexhausted. On June 5, 2017, the Court conditionally granted the motion and dismissed the action without prejudice unless Petitioner moved for a stay under Rhines v. Weber, 544 U.S. 269 (2005). On August 3, 2017, the Court stayed Petitioner's deadline for filing a Rhines motion and ordered Respondent to lodge additional documents relating to the exhaustion of Petitioner's claims. Respondent lodged the documents on September 7, 2017.

         On October 6, 2017, Petitioner filed a “Notice of Pending State Actions; Request for Counsel; Request for Information, ” which, among other things, indicated that he was in the process of filing a habeas petition in the state supreme court. His state habeas petition raised the FAP's claims and various others, including insufficiency of the evidence, double-jeopardy violations, miscalculation of prison early-release credits, and actual innocence. (See Pet'r's Notice Pending State Actions at 4-9, Oct. 6, 2017; see also Pet'r's Lodged Doc. at 3-6 (ECF No. 44) (state-supreme-court habeas petition).)[2] On January 10, 2018, the state supreme court denied Petitioner's habeas petition with a citation to In re Swain, 34 Cal. 2d 300');">34 Cal. 2d 300, 304 (1949). See Cal.App. Cts. Case Info., http://appellatecases.courtinfo. (search for “Lesopravsky”) (last visited May 2, 2018).

         In the meantime, Petitioner was resentenced. The Court's review of the Los Angeles County Superior Court website confirms that Petitioner was resentenced on February 28, 2017. See Criminal Case Summary, Super. Ct. of Cal., Cnty. of L.A., (search for case number PA077147) (last visited May 2, 2018); (see also Pet'r's Notice Pending State Actions at 4, Oct. 6, 2017). The Court's review of the California Appellate Courts Case Information website shows that on March 24, 2017, Petitioner filed an appeal from his resentencing, court-of-appeal case number B281733, which remains pending. See Cal.App. Cts. Case Info., (search for trial-court case number PA077147) (last visited May 2, 2018). Briefing in the California Court of Appeal was completed on December 26, 2017. Id. On August 7, 2017, Petitioner filed an appeal from a different resentencing, court-of-appeal case number B284478, which also remains pending. See id. (search for “Lesopravsky”) (last visited May 2, 2018). Briefing in that case has not been completed. Id.

         The FAP challenges Petitioner's convictions and sentence in superior-court case number PA077147. (See FAP at 2.) His August 7, 2017 state appellate-court filing apparently concerns case number MA070047. See Cal.App. Cts. Case Info, http:// (search for case number B284478) (last visited May 2, 2018). His September 29, 2017 state-supreme-court habeas petition concerned trial-court case numbers “PA077147/LA04488 and probation/MA070047.” (See Pet'r's Lodged Doc. at 2.) The extent to which the claims of the FAP implicate case number MA070047 is unclear.

         On October 24, 2017, the Court ordered Petitioner to show cause why the FAP should not be dismissed without prejudice under Younger v. Harris, 401 U.S. 37, 45-46 (1971). The Court also ordered the parties to lodge copies of their briefs in court-of-appeal case number B281733 and of any state habeas petition filed by Petitioner. The parties lodged those documents on November 3 and December 15, 2017.

         On February 23, 2018, following two extensions of time, Petitioner filed a response to the order to show cause, contending that he is unable to adequately litigate his federal constitutional issues in state court because state courts are “vindictive” and have “violated double jeop[ardy], ” among other reasons, and thus the Court should not invoke Younger. (See, e.g., Resp. at 5, 12.) While not a model of clarity, it appears to move in the alternative for a Rhines stay.[3] (See id. at 1-3.) It also renews Petitioner's request for the appointment of counsel (see id. at 15) and seeks a third enlargement of time (see id. at 16). Despite being ordered to do so in the Court's October 24, 2017 order, Respondent did not file a reply or opposition.

         The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c)(1). For the reasons discussed below, the Court denies the motion for a stay and dismisses this action without prejudice under Younger and Rhines.


         On June 23, 2014, Petitioner pleaded nolo contendere to charges of evading an officer (Cal. Veh. Code § 2800.2(a)) and transportation of marijuana (Cal. Health & Safety Code § 11360(a)). (FAP at 2.) Petitioner admitted that he committed those offenses while he was on bail within the meaning of Penal Code section 12022.1 and that he had suffered a prior strike conviction under sections 667(b)-(i) and 1170.12(a)-(d). (See Lodged Doc. 1 at 5-6.) He further admitted that he had served a prior prison term within the meaning of section 667.5(b). (Id. at 6.)

         On July 1, 2014, Petitioner moved to withdraw his plea, continue the matter, represent himself, have another attorney appointed to represent him, withdraw his prior-strike admission, and have a supplemental probation report prepared. (See id. at 7-8.) The trial court denied all of his motions and sentenced him to eight years in state prison.[4] (Id.)

         Petitioner filed a notice of appeal and was granted a certificate of probable cause; his appellate counsel subsequently filed a brief under People v. Wende, 25 Cal.3d 436 (1979), raising no issues and asking the appellate court to conduct an independent review of the record. (FAP at 2; see also Lodged Doc. 2 at 4.) On December 4, 2014, Petitioner apparently filed a lengthy supplemental brief pro se. (See Lodged Doc. 2 at 4.) On December 17, 18, and 26, 2014, he filed “additional handwritten briefs or letters, ” which the appeals court accepted “despite their untimeliness.” (Id.) Petitioner's pro se filings apparently raised grounds similar to those in the FAP, including ineffective assistance of counsel, challenges to the length of his sentence, and contentions that the trial court improperly denied his various motions at the July 1, 2014 hearing.[5] (Id. at 4-7.) The court of appeal rejected Petitioner's claims on March 12, 2015, in a reasoned decision. (See generally id.)

         On May 11, 2015, Petitioner filed an application for relief from default and an untimely petition for review with the California Supreme Court. (See Lodged Doc. 5); see also Cal.App. Cts. Case Info., search.cfm?dist=0 (search for trial-court case number PA077147) (last visited May 2, 2018). The 2015 petition consisted of a blank table of contents and a blank document template signed by Petitioner. (See Lodged Docs. 3, 7.) It apparently attached as an “appendix” a copy of the court of appeal's decision with Petitioner's handwritten annotations and commentary in the margins. (See Lodged Doc. 7 at 12-19.) Although only partially legible, Petitioner's marginalia seem to have contended that the court of appeal's decision was “incorrect & wrong” (see id. at 19) because, among other things, “prosecutorial & judicial misconduct forcing [d]efense attorney to act incompetently” and “[d]efense counsel misconduct - swaying the court to convict him, Mr. Katz - must not be added [sic] [and] not allowed to practice law anywhere period” (id. at 18). Petitioner provided no factual support and cited no legal authority for those contentions. The state supreme court apparently allowed the untimely May 11 filing and issued a summary denial on June 17, 2015. (See Lodged Doc. 4.) There is no record of Petitioner's having sought a writ of certiorari from the U.S. Supreme Court. See U.S., https:// (search for “Lesopravsky” yielding no results) (last visited May 2, 2018).


         I. Petitioner's trial and appellate counsel provided ineffective assistance by failing to challenge the search and seizure that led to Petitioner's arrest. (FAP at 5.)

         II. The prosecution committed misconduct and abused its discretion when it pursued charges against Petitioner under California Health and Safety Code section 11360, which is “constitutionally void.” (Id. at 5-6.)

         III. The trial court failed to comply with an Arbuckle[6] waiver and “guidelines in taking multiple plea-deal[s]” when it sentenced Petitioner. (Id. at 6.)

         IV. Petitioner was deprived of his rights under People v. Marsden, 2 Cal.3d 118 (1970) (providing for substitution of appointed counsel on showing of ineffective assistance or irreconcilable conflict), and Faretta v. California, 422 U.S. 806 (1975) (defendants may knowingly, intelligently, and voluntarily waive right to counsel), when it denied his ...

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