Schweitzer v. State of Hawaii, et al
ORDER ASSESSING STATUS OF PETITIONER'S CLAIMS AND DIRECTING PETITIONER TO EITHER DISMISS UNEXHAUSTED CLAIMS OR FILE RULE 40 MOTION IN STATE COURT BY DECEMBER 30, 2016. Signed by JUDGE LESLIE E. KOBAYASHI on 08/24/2016. (eps )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ALBERT IAN SCHWEITZER,
STATE OF HAWAI`I, ET AL.,
CIVIL 05-00065 LEK-BMK
ORDER ASSESSING STATUS OF PETITIONER’S CLAIMS AND
DIRECTING PETITIONER TO EITHER DISMISS UNEXHAUSTED CLAIMS
OR FILE RULE 40 MOTION IN STATE COURT BY DECEMBER 30, 2016
On January 31, 2005, pro se Petitioner Albert Ian
Schweitzer (“Schweitzer”) filed his Petition under 28 USC § 2254
for Writ of Habeas Corpus by a Person in State Custody
March 9, 2005.
[Dkt. no. 1.]
[Dkt. no. 4.]
He filed his Amended Petition on
On May 3, 2005, the magistrate
judge issued the Findings and Recommendation to Dismiss Petition
for Writ of Habeas Corpus (“Amended Petition F&R”).
The magistrate judge concluded that Schweitzer’s Amended
Petition was “a mixed petition containing both exhausted and
[Amended Petition F&R at 12.]
magistrate judge directed Schweitzer to notify the court whether
he would voluntarily delete the unexhausted claims and proceed on
only the exhausted claims or voluntarily dismiss the unexhausted
The district judge adopted the Amended Petition F&R on
June 16, 2005. [Dkt. no. 13.]
claims and move for a stay of the Amended Petition until he fully
exhausted the remaining claims.
[Id. at 17.]
In response to the Amended Petition F&R, Schweitzer
filed his: “Notification of Court Regarding Findings &
Recommendations to Dismiss Petition for Writ of Habeas Corpus”;
and “Addenda to Petition w/Corrections.”
[Dkt. nos. 11, 12.]
This Court construes those two documents collectively as
Schweitzer’s Second Amended Petition.
To the extent that the
Amended Petition alleged claims that Schweitzer does not allege
in the Second Amended Petition, this Court CONSTRUES his failure
to include such claims in the Second Amended Petition as a
dismissal of those claims without prejudice.
See Notification of
Court Regarding Findings & Recommendations to Dismiss Petition
for Writ of Habeas Corpus, filed 5/20/05 (dkt. no. 11), at 1 (“I
voluntarily delete the unexhausted claims in the Amended Petition
and proceed ONLY with the exhausted claims.” (some emphases
omitted)); see also Lacey v. Maricopa Cty., 693 F.3d 896, 925
(9th Cir. 2012) (en banc) (stating that an “amended complaint
supersedes the original, the latter being treated thereafter as
non-existent” (citations and internal quotation marks omitted)).
This Court acknowledges that Schweitzer may have dismissed those
claims intending to seek leave to file a third amended petition
to re-allege some or all of those claims after he has exhausted
them in state court.
See Kelly v. Small, 315 F.3d 1063 (9th Cir.
2003), overruled on other grounds as stated in, Robbins v. Carey,
481 F.3d 1143, 1149 (9th Cir. 2007).
However, at the present
time, those claims are not before this Court, and this Court
makes no findings or conclusions regarding whether Schweitzer
would be granted leave to amend to re-allege those claims after
See, e.g., Schoenlein v. Hawaii Dep’t of Pub.
Safety/Saguaro Corr. Facility, Civ. No. 12-00046 DAE-KSC, 2012 WL
4069290, at *6 n.6 (D. Hawai`i Aug. 16, 2012) (discussing
possible difficulties with the Kelly procedure).2
The operative pleading is Schweitzer’s Second Amended
Petition, and it alleges the only claims – i.e. grounds for
relief – that are currently before this Court: 1) denial of his
motion for change of venue (“Ground One”); 2) ineffective
assistance of counsel based on inexperience, failure to interview
witnesses prior to trial, and failure to conduct a proper
investigation of the allegations, facts, and legal theories
(“Ground Two”); 3) prosecutorial misconduct based on excessive
use of leading questions and introduction of highly prejudicial
evidence which denied him a fair trial (“Ground Three”); and
4) violation of his Sixth Amendment right to confront a key
witness who had alleged confessed to being a part of the crime
[Addenda to Petition w/Corrections at 5-6.]
2012 WL 4069290 is a report and recommendation that the
district judge adopted on September 14, 2012. 2012 WL 4069242.
Ground One of Schweitzer’s Amended Petition was based,
in part, on his argument that the trial court should have granted
a change of venue.
The magistrate judge found that the change of
venue claim was exhausted.
[Amended Petition F&R at 10-11.]
Ground Three of Schweitzer’s Amended Petition was based, in part,
on his argument that his Sixth Amendment right to confrontation
The magistrate judge found that the Sixth
Amendment claim was exhausted.
[Id. at 11-12.]
Schweitzer’s Grounds One and Four in the Second Amended Petition
repeat his change of venue claim and Sixth Amendment claim that
he alleged in his Amended Petition, Grounds One and Four of the
Second Amended Petition are exhausted.
The magistrate judge found that Schweitzer’s claims in
Grounds Two and Three of the Second Amended Petition are
[Findings and Recommendation to Direct Petitioner
to Inform the Court How He Shall Proceed (“Second Amended
Petition F&R”), filed 12/1/05 (dkt. no. 29), at 13-14.3]
Schweitzer’s Second Amended Petition is a mixed petition.
magistrate judge stayed the Second Amended Petition to allow
Schweitzer to present his unexhausted claims to the Hawai`i state
court pursuant to Rule 40 of the Hawai`i Rules of Penal
The Order Staying Petition gave Schweitzer ninety
By the time the magistrate judge issued the Order Staying
Petition on March 13, 2006, [dkt. no. 37,] the district judge had
not acted upon the Second Amended Petition F&R.
days – i.e., until June 11, 2006 – to file his Rule 40 motion.
[Order Staying Petition at 3.]
Over ten years have passed since then, and Schweitzer
still has not filed his Rule 40 motion.
The United States
Supreme Court has clearly stated that, “[e]ven where stay and
abeyance is appropriate, the district court’s discretion in
structuring the stay is limited by the timeliness concerns
reflected in [the Antiterrorism and Effective Death Penalty Act
A mixed petition should not be stayed indefinitely.”
Rhines v. Weber, 544 U.S. 269, 277 (2005) (emphasis added).
Court therefore ORDERS Schweitzer that, by December 30, 2016, he
must either: 1) voluntarily dismiss his unexhausted claims in the
Second Amended Petition; or 2) file a Rule 40 motion presenting
his unexhausted claims to the Hawai`i state courts.
If Schweitzer voluntarily dismisses the unexhausted
claims in the Second Amended Petition, this Court will lift the
stay, and the case will proceed on the exhausted claims in the
Second Amended Petition.
If Schweitzer files a Rule 40 motion in
state court, this Court ORDERS him to file a copy of the motion
in the instant case so that this Court can review the claims that
he presents in the Rule 40 motion.
Schweitzer must file a copy
of the Rule 40 motion in this case within seven days after filing
the Rule 40 motion in state court.
After reviewing Schweitzer’s
Rule 40 motion, this Court will determine whether it is
appropriate to allow the stay in the instant case to continue.
This Court EMPHASIZES that the filing of a Rule 40 motion alone
will not automatically continue the stay in the instant case.
This Court CAUTIONS Schweitzer that, if he fails to
either dismiss his unexhausted claims or file a Rule 40 motion by
December 30, 2016, this Court will lift the stay and will dismiss
the mixed Second Amended Petition without prejudice.
544 U.S. at 273 (“federal district courts may not adjudicate
mixed petitions for habeas corpus”); id. (“we imposed a
requirement of ‘total exhaustion’ and directed federal courts to
effectuate that requirement by dismissing mixed petitions without
prejudice and allowing petitioners to return to state court to
present the unexhausted claims to that court in the first
Although Rhines allows district courts to utilize
the stay and abeyance procedure for mixed petitions, the Supreme
Court stated that the procedure “should be available only in
limited circumstances,” and cautioned that “district courts
should place reasonable time limits on a petitioner’s trip to
state court and back.”
Id. at 277-78.
Schweitzer had more than
a reasonable amount of time to exhaust his claims.
Schweitzer fails to either dismiss his unexhausted claims or file
a Rule 40 motion by December 30, 2016, this Court will dismiss
the Second Amended Petition without prejudice.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, August 24, 2016.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
ALBERT IAN SCHWEITZER VS. STATE OF HAWAI`I, ET AL.; CIVIL 0500065 LEK-KJM; ORDER ASSESSING STATUS OF PETITIONER’S CLAIMS AND
DIRECTING PETITIONER TO EITHER DISMISS UNEXHAUSTED CLAIMS OR FILE
A RULE 40 MOTION IN STATE COURT BY DECEMBER 30, 2016
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