197 F. App'x 716

William Frankli DOBROVOLNY, Petitioner—Appellant, v. Cal A. TERHUNE, Director California Department of Corrections, Respondent—Appellee.

No. 05-16750.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 15, 2006.

Filed Aug. 21, 2006.

*717David M. Porter, Esq., Federal Public Defender’s Office (Sacramento), Sacramento, CA, for Petitioner — Appellant.

Janine R. Busch, Esq., AGCA — Office of the California Attorney General (Sac), Department of Justice, Sacramento, CA, for Respondent — Appellee.

Before: CANBY, THOMPSON, and HAWKINS, Circuit Judges.

MEMORANDUM *

William Franklin Dobrovolny appeals the denial of his 28 U.S.C. § 2254 habeascorpus petition which challenged his conviction for bringing a weapon into or within the grounds adjacent to a jail. See CahPenal Code § 4574.1 We have jurisdiction under 28 U.S.C. §§ 1291 & 2253, and we affirm.2

The state court’s ruling that the withheld impeachment evidence about Saucedo was immaterial did not violate clearly established federal law because all of the witnesses, including Dobrovolny, testified that Dobrovolny sat on a planter attached to the jail with two concealed knives before attempting to enter the jail. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Saucedo’s personnel file and work history were immaterial because Dobrovolny’s offense was complete when he carried the knives onto the jail grounds. See Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (holding that evidence is material if it gives rise to a reasonable probability of a different trial result such that confidence in the jury’s verdict is undermined).

Dobrovolny’s counsel was not constitutionally defective because no prejudice could result from her failure to obtain immaterial impeachment evidence about Saucedo. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (holding that a habeas *718petitioner must show a reasonable probability that “but for counsel’s unprofessional errors, the result of the proceeding would have been different”).

California Penal Code § 4574(a) is not unconstitutionally vague as applied to this case because a person of ordinary intelligence would understand that the law prohibited sitting on a planter attached to the jail while carrying two concealed knives. See Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).

AFFIRMED.

Dobrovolny v. Terhune
197 F. App'x 716

Case Details

Name
Dobrovolny v. Terhune
Decision Date
Aug 21, 2006
Citations

197 F. App'x 716

Jurisdiction
United States

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