Whitby v. Thomas

Filing 15

ORDER DISMISSING 1 PETITION AS TIME-BARRED AND DENYING CERTIFICATE OF APPEALABILITY: "For the foregoing reasons, the Petition is time-barred and is DISMISSED with prejudice. A Certificate of Appealability and leave to proceed in forma paupe ris on appeal are DENIED because (1) dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable, and (2) Whitby has not made a substantial showing of the denial of a constitut ional right. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); Rule 11(a), Rules Governing § 2254 Proceedings. IT IS SO ORDERED." Signed by Senior JUDGE HELEN GILLMOR on August 10, 2010. (bbb, )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). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII BRYANT K. WHITBY, #A0715868, ) ) ) Petitioner, ) ) vs. ) ) TODD THOMAS, ) ) ) Respondent. _____________________________ ) CIV. NO. 10-00287 HG-BMK ORDER DISMISSING PETITION AS TIME-BARRED AND DENYING CERTIFICATE OF APPEALABILITY

ORDER DISMISSING PETITION AS TIME-BARRED AND DENYING CERTIFICATE OF APPEALABILITY Petitioner Bryant K. Whitby, a Hawaii prisoner incarcerated in Arizona, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. Respondent has answered

the Petition and argues it should be dismissed as time-barred and unexhausted. (Doc. 9.) Whitby filed a Traverse and a Reply.

(Docs. 11 & 13.)

After reviewing the parties submissions, the

court ordered Respondent to file a supplemental brief regarding the availability of legal materials to Whitby during his incarceration. Respondent did so on August 2, 2010. (Doc. 14.)

The Court has carefully considered the entire record and the parties' arguments. Because it is clear that the

Petition is time-barred, the Court DISMISSES the Petition with prejudice as barred by the statute of limitation set forth in 28 U.S.C. § 2244(d) and DENIES a Certificate of Appealability.

I. BACKGROUND On or about October 7, 1996, Whitby was convicted of forty-one charges of sexual assault by jury trial in the Circuit Court of the Second Circuit, State of Hawaii ("circuit court"), in Cr. No. 95-0435(2). on December 30, 1996. On January 6, 1998, the Hawaii Supreme Court vacated thirty-six of the forty-one counts against Whitby (counts 4 through 18 and 22 through 42) and affirmed the remaining counts and sentence. (Resp.'s App. A, SC No. 20457.) Notice and Entry of judgment and sentence was filed

judgment on appeal was filed March 5, 1998.

(Resp.'s App. B.)

Whitby did not seek certiorari from the United States Supreme Court. Whitby moved for a reduction of sentence on May 28, 1998, that the circuit court denied on June 26, 1998. App. D.) (Resp.'s

While that motion was pending, the circuit court

granted the State's motion to dismiss counts 4 through 18 and 22 through 42, on June 12, 1998. (Resp.'s App. C.) Whitby did not

appeal the circuit court's denial of his motion for reduction of sentence. On January 7, 1999, Whitby, represented by Randolph J. Amen, Esq., filed his first petition for post-conviction relief, alleging ineffective assistance of trial counsel and trial court error for failure to declare a mistrial. 2 ("Petition I").

(Resp.'s App. E, SPP. No. 99-0001(2).)

On September 29, 1999,

Jock M. Yamaguchi, Esq., substituted as counsel in this proceeding.1 See Hawaii State Judiciary Ho'ohiki, Public Access The circuit court construed Petition I as

to Court Information.2

brought pursuant to Rule 40 of the Hawaii Rules of Penal Procedure ("HRPP"), and issued a findings of fact and conclusions of law and order denying Petition I on October 26, 1999. (Resp.'s App. F.) Whitby did not appeal.

On December 2, 1999, however, Yamaguchi filed another post-conviction petition in SPP No. 99-0001(2) on Whitby's behalf. (Resp.'s App. G.) The circuit court construed this

motion as brought in part pursuant to HRPP 40 ("Petition II"), and in part pursuant to HRPP 35 ("Petition III"), for correction of illegal sentence. The circuit court denied Petition II on May

16, 2000, (Resp.'s App. H, Ex. A), and denied Petition III on November 13, 2000. these decisions. Whitby appealed the consolidated judgment in

(Resp.'s Apps. H & J.)

On May 18, 2004, the Hawaii Supreme Court affirmed the circuit court's consolidated judgment denying Whitby's claims for relief in Petitions II and III. 1102323, unpub. (Haw. 2004). filed on June 4, 2004.
1 2

See Whitby v. State, 2004 WL

Notice and judgment on appeal was

(Resp.'s App L.) (Pet. at 14.)

Whitby says that Amen was disbarred.

Available at http://hoohiki1.courts.state.hi.us/jud. 3

Almost four years later, on February 20, 2008, Whitby, now proceeding pro se, filed another Rule 40 petition ("Petition IV"). (Resp.'s App. M, SPP. No. 08-1-0003(2).) The circuit

court denied Petition IV on August 26, 2008.

(Resp.'s App. N.)

On July 15, 2009, the Intermediate Court of Appeals, State of Hawaii ("ICA"), affirmed. (Resp.'s App. P.) On November 23, (Resp.'s App.

2009, the Hawaii Supreme Court denied certiorari. Q.) II. WHITBY'S CLAIMS

Whitby first challenges his extended term sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000),3 and its progeny, including Kaua v. Frank, 436 F.3d 1057 (9th Cir. 2006)4 (finding that Hawaii's extended term sentencing regime was unconstitutional under Apprendi), Kamana'o v. Peyton, 2006 WL 1775869 (D. Haw. 2006) (same), and State v. Maugaotega, 115 Haw.

Apprendi held that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490. Whitby provides no cites for Kaua and Kamana'o. Since the state court cases in Kaua and Kamana'o are inapposite to Whitby's arguments, this Court assumes Whitby refers to the abovereferenced cases. See State v. Kaua, 102 Hawaii 1, 72 P.3d 473 (Haw. 2003), abrogated by Kaua v. Frank, 436 F.3d 1057 (9th Cir. 2006); State v. Kamana'o, 2005 WL 1428522 (Haw. Ct. App. June 20, 2005), vacated by Kamana'o v. Peyton, 2006 WL 1775869 (D. Haw. June 21, 2006); but see State v. Kamana'o, 118 Haw. 210, 188 P.3d 724 (Haw. Jul 23, 2008) (imposing consecutive maximum sentences on remand), upheld by Kamana'o v. Frank, No. 09-00313 JMS, 2010 WL 1783560 (D. Haw. Apr. 30, 2010). 4
4

3

432, 447, 168 P.3d 562, 577 (2007) (same)(Ground One).5

Whitby

modifies this claim somewhat in his Traverse and Reply, claiming it is an illegal sentence under state law, as revised after Apprendi, et al. Whitby next argues that the circuit court erred by failing to give a lesser-included-offense jury instruction pursuant to Hawaii Revised Statute ("HRS") § 707-731 and Keeble v. United States, 412 U.S. 205 (1973) (holding that a lesserincluded-offense instruction is required if a rational jury could find guilt on the lesser offense and acquit on the greater) (Ground Two). Finally, Whitby argues ineffective assistance of counsel, for counsel's failure to raise the preceding two issues on direct appeal (Ground Three). Whitby argues that, because he

had the same counsel at trial and on appeal, he was unable to Whitby also refers without citation to Jones v. United States (526 U.S. 227, 248 (1999)). Jones held that, except for a past conviction, any fact that increases the maximum penalty for an offense must be alleged in a federal indictment. Id. at 243 n.6. Jones applies to federal prosecutions only, as the fifth amendment's grand jury clause has not been applied to the states through the fourteenth amendment. See e.g., United States v. Cotton, 535 U.S. 625, 627 (2002). The Court recognizes that, since 2008, the Hawaii Supreme Court has held that any factors that must be proven to the jury under Apprendi/Cunningham, et al., must be alleged in the charging instrument. See State v. Jess, 117, Haw. 381, 184 P.3d 133 (Haw. 2008). This rule does not apply retroactively on collateral challenges, so cannot apply to Whitby's challenge here. Id. 117 Haw. at 404, 184 P.3d at 156. Moreover, Whitby does not explain the alleged infirmity in his indictment or even argue that Jess applies to his case. 5
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raise the issue of ineffective assistance of counsel on direct appeal. Whitby apparently argues that under Massaro v. United

States, 538 U.S. 500 (2003), he may raise this claim now, regardless of the statute of limitation.6 III. LEGAL STANDARD

On April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") drastically altered the time limit imposed on state prisoners filing habeas corpus petitions in federal court. The AEDPA established a one-year period in which

to file a petition for writ of habeas corpus in federal court. 28 U.S.C. § 2244(d)(1). of: (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States The limitation period runs from the latest

(B)

Massaro holds that failure to raise an ineffective assistance of counsel claim on direct appeal in a federal prosecution does not preclude raising it in a subsequent motion to vacate under 28 U.S.C. § 2255. 538 U.S. at 504. Massaro has no application to § 2244's procedural rules concerning the statute of limitation. Compare 28 U.S.C. § 2255 with § 2254. Whitby's inability to raise his ineffective assistance claims on direct appeal, moreover, did not prejudice his ability to exhaust these claims in SPP No. 99-0001(2), or impact his ability to timely file a federal petition. See Briones v. State, 74 Haw. 442, 459, 848 P.2d 966, 968-69 (1993) (holding that when a petitioner has been represented by the same counsel both at trial and on direct appeal, no waiver of the issue of trial counsel's performance occurs because no realistic opportunity existed to raise the issue on direct appeal). 6

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is removed, if the applicant was prevented from filing such by State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(D)

Section 2244(d)(2) further provides for tolling of the statute of limitations for "[t]he time during which a properly filed application for State post-conviction or other collateral review . . . is pending." See also Duncan v. Walker, 533 U.S. 167,

181-82 (2001) (limiting statutory tolling under 2244(d)(2) to state, not federal petitions). The statute may be equitably tolled upon a showing, among other things, that "some extraordinary circumstance stood in [petitioner's] way." Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005); Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). However, "the threshold necessary to trigger equitable

tolling . . . is very high, lest the exceptions swallow the rule." Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)

(quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). IV. DISCUSSION Whitby filed this Petition after the effective date of the AEDPA and it governs this action. 7 The statute of limitations

is a threshold issue the court must resolve before reaching other procedural issues or the merits of Whitby's claims. Klitzkie, 283 F.3d 920, 921-22 (9th Cir. 2002). A. Date of Finality of the Conviction on Direct Review Whitby had thirty days to appeal the circuit court's denial of his motion for reduction of sentence, but did not. Whitby's conviction was therefore final on direct review on July 26, 1998. See 28 U.S.C. § 2244(d)(1)(A); Haw. R. App. P. White v.

4(b)(1); Smith v. Duncan, 297 F.3d 809, 812-13 (9th Cir. 2002) (holding that, if no direct appeal is sought, state conviction becomes final on the date that the time for such appeal lapses). The statute of limitation ran from July 27, 1998, until January 7, 1999, the date that Whitby filed Petition I in SPP No. 99-0001(2), totaling 164 days. See 28 U.S.C. § 2244(d)(2). The

statute then tolled until May 18, 2004, the date that the Hawaii Supreme Court denied Whitby's post-conviction challenge in SPP No. 99-0001(2). See White v. Klitzkie, 281 F.3d 920, 921 n.4

(9th Cir. 2002) (stating that "it is the decision of the state appellate court, rather than the ministerial act of entry of the mandate, that signals the conclusion of review.").7 Respondent incorrectly argues that the statute was tolled for 90 days after June 4, 2004, when notice and judgment on appeal issued in SPP No. 99-0001(2). See Ans. at 4. First, the date the mandate issues is immaterial, it is the date the state court issues its final order that controls. See White, 281 F.3d (continued...) 8
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The statute began running again on May 19, 2004, and expired 201 days later, on or about December 5, 2004. Whitby

filed the present petition on May 14, 2010, nearly five and a half years after the limitation period ran. Unless Whitby is

entitled to an alternative date for commencement of the statute of limitation, or to equitable tolling, his Petition is timebarred. B. Section 2244(d)(1)(B) Tolling Does Not Apply Whitby states that he has had no access to "proper legal books" and that the AEDPA rules or guidelines have never been "posted" at any prison facility since his incarceration on the Mainland during the past twelve years. at 2.) (Pet. at 12; Traverse

Whitby argues that he is therefore entitled to statutory

or equitable tolling of the limitation period. 1. No Basis for Statutory Tolling Under § 2244(d)(1)(B), the statute of limitations commences on the date that a state-created impediment to filing the federal petition is removed. 28 U.S.C. § 2244(d)(1)(B). The

unavailability of materials in the prison law library explaining the AEDPA may warrant equitable tolling or a delayed commencement

(...continued) at 921 n.4. Second, petitioners are not entitled to further tolling under § 2244(d)(2) after state post-conviction proceedings conclude. See Lawrence v. Florida, 549 U.S. 327, 332 (2007). 9

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of the limitations period pursuant to § 2244(d)(1)(B).

See

Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc); see also Roy v. Lampert, 465 F.3d 964, 972 n.3 (9th Cir. 2006). If the requirements of section 2244(d)(1)(B) are met,

"[t]he limitations period would then run from the date on which the impediment is removed." Bryant, 499 F.3d at 1060.

Section 2244(d)(1)(B) applies only to intentional impediments created by state action that violate the Constitution or laws of the United States. 28 U.S.C. § 2244(d)(1); Shannon v. "To obtain

Newland, 410 F.3d 1083, 1088 n.4 (9th Cir. 2005).

relief under section 2244(d)(1)(B), the petitioner must show a causal connection between the unlawful impediment and his failure to file a timely habeas petition." Bryant v. Arizona Attorney

Gen., 499 F .3d 1056, 1060 (9th Cir. 2007). Whitby is not illiterate, although he states that he is untrained in the law and had inmate assistance in filing the present Petition. (Pet'r. Mem. in Support.) Whitby states,

however, that he worked in the prison law libraries in both Mississippi and in Arizona, although he claims that he has no computer knowledge. (See Reply at 3.) Whitby was able to file a Whitby also

state post-conviction petition pro se in 2008.

states that he recently asked his current law librarian for information on the AEDPA, and she told him he would have to obtain a copy of it himself. (Doc. 11, Traverse at 2.) 10

Accepting Whitby's statements at face value, they suggest, at a minimum, that Whitby is educated, had regular access to the prison law libraries, had sufficient knowledge to perform the clerical duties required in a library, was entrusted to a position where he had the ability to assist other inmates in the library, had the ability to seek help, including computer assistance, and the ability to file a state post-conviction petition pro se in 2008. Whitby does not explain why, if his

statements are true, he was unable to seek help filing a federal habeas petition in 2008, or to write or communicate with the federal court at any time until he filed the present Petition in 2010. Moreover, Respondent refutes Whitby's claims regarding any alleged lack of access to the AEDPA or other legal materials at the Mainland prisons where Whitby has been incarcerated. Respondent avers that federal and state case law and statutes were available at every Mainland prison in which Whitby has been housed since 1999. (Doc. 14, Supp'l Br., Kimoto Dec.)

Whitby was incarcerated in Minnesota, at the Prairie Correctional Facility, from January 1999 to April 2001; in Arizona, at the Florence Correctional Facility, from April 2001 to May 2004; in Mississippi, at the Tallahatchie Correctional Facility, from May 2004 to August 2007; and back in Arizona, at the Saguaro Correctional Center, from August 2007 until the 11

present.

(Id.)

Shari Kimoto, the Hawaii Department of Public

Safety's Mainland/FDC Administrator states that the Department of Public Safety purchased and provided legal reference materials, including state and federal case law and statutes, at each of these facilities during the times that Whitby was housed in each of them. (Id.) In Minnesota, Mississippi, and at the Florence,

Arizona facilities the Department of Public safety provided law books. At the Saguaro Correctional Center, the Department of

Public Safety installed touch screen computer kiosks for electronic legal research. (Id.) Federal statutes were provided

and would encompass Title 28 of the United States Code, including section 2244, the relevant section of the AEDPA, to which Whitby claims he had no access.8 If Whitby was a law library clerk, as he claims and as Respondent verifies, he clearly had the ability to look up

Respondent says he is unable to specifically verify whether the AEDPA statutes were available, because "the only verification available was that access to federal statutes was provided by books and computer as indicated." (Doc. 14 at 2 n.1.) Respondent is directed to Jelks v. Swenson, Civ. No. 08-00108 JMS (D. Haw. 2008), wherein the petitioner also claimed he had no access to the AEDPA in his Mainland prisons, including the Saguaro Correctional Facility in 2007. Respondent Thomas at that time provided a declaration describing in detail the legal materials available at the Saguaro Correctional Facility, supported by invoices for legal materials purchased for, or subscribed to by, the Saguaro prison, showing that computer or hard copies of Title 28 of the U.S. Code Annotated was available at the Saguaro facility since mid-2007 at the latest. See Jelks, Civ. No. 08-00108 Docs. 24, 29, 31; see also Calderwood v. Luna, Civ. No. 07-00520 DAE (D. Haw. 2007). 12

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relevant portions of the U.S. Code dealing with federal habeas petitions in the prisons that retained books. Whitby carefully

claims that he has no "proper legal books," however, apparently referring to the computer kiosk system in place now at the Saguaro facility. (Pet. at 12.) Whitby does not explain why he Whitby

could not seek help using the computer kiosks at Saguaro. is also careful to simply complain that none of the prison

libraries "posted" AEDPA guidelines, rather than attesting that the AEDPA was unavailable to prisoners through routine diligence. This Court is unaware of any requirement that a prison must post guidelines explaining the AEDPA, as long as the statute, case law, or other help accessing such materials is available to prisoners. Respondent further avers that Whitby has never complained or filed a grievance regarding the alleged lack of legal materials at any prison in which he has been incarcerated. (Id., Komori Decl.) Whitby concedes that he has never grieved Whitby states that he relies

the lack of AEDPA materials.

instead on his unnamed inmate assistant's "numerous grievance[s]" regarding the lack of legal materials throughout the time that Whitby and this inmate have been at these Mainland prisons. Pet. at 14.) This is insufficient. Whitby does not provide (See

copies of this unnamed inmate's grievances, or their disposition. Whitby does not explain why he did not grieve this alleged 13

impediment himself, or seek help sooner.

In short, Whitby

provides nothing supporting his allegations or showing his own diligence in pursuing this matter. Most importantly, Whitby was able to file his last state post-conviction proceeding, Petition IV, pro se on February 20, 2008. (See Doc. 10-13, Resp.s' App. M.) In Petition IV,

Whitby argues that he was denied "a meaningful and adequate lawlibrary to further his appeal to the Federal Courts and Ninth Circuit Court of Appeals based upon a recent 9th Circuit Court decision (See Roy v. Lampert, 465 F.3d 964 (9th Cir. 2006.))." (Resp.'s App. M at 19.) Whitby claimed in Petition IV that these

"extraordinary circumstances" allowed him to proceed with a new state post-conviction petition under HRPP 40, and prevented him from filing any federal petition earlier. Id. It is therefore

clear that Whitby was aware of the AEDPA and its requirements no later than February 11, 2008, when he signed Petition IV, and there was no state-created impediment to filing a federal petition at least as of that date. Once Whitby admittedly became aware of the AEDPA no later than February 2008, it was incumbent on him to file a petition in the federal court. While some of Whitby's claims may

have been unexhausted or procedurally defaulted, he had remedies available nonetheless. Had he brought a petition in federal

court in 2008, Whitby could have requested a stay and abeyance of 14

his petition until all of his claims were exhausted. 544 U.S. at 416.

See Pace,

Whitby, however took no action specifically

aimed at meeting or preserving his federal habeas corpus deadline. Whitby therefore did not act with diligence to

preserve his right, even if the court accepts that he was completely unaware of the AEDPA's statute of limitation until February 2008. Because the present Petition was filed two years

after removal of this alleged impediment, § 2244(d)(1)(B) does not toll the running of the statute. 1060. 2. No Basis for Equitable Tolling For the same reasons that Whitby is not entitled to statutory tolling under § 2244(d)(1)(B), he has not shown that "extraordinary circumstances beyond [his] control [made] it impossible to file a petition on time," such that the statute of limitation may be equitably tolled. 1104, 1107 (9th Cir. 1999). Miles v. Prunty, 187 F.3d See Bryant, 499 F.3d at

Equitable tolling is unavailable in

most cases but may be appropriate "[w]hen external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim." Id. at 1107; see also Guillory v. Roe, 329

F.3d 1015, 1018 (9th Cir.), cert. denied, 540 U.S. 974 (2003). It is Whitby's burden to demonstrate that he is entitled to equitable tolling of the statute. 809, 814 (9th Cir. 2002). See Smith v. Duncan, 297 F.3d

Whitby has not done so and is not 15

entitled to equitable tolling.

C.

Sections 2244(d)(1)(C) & (D) Do Not Apply Section 2244(d)(1)(C) provides that the limitation

period runs from "the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." (emphasis added). Id.

Whitby does not argue that this section delays

the running of the limitation period, but claims relief under Apprendi, et al., and states that he "[w]as not aware [of] the recent US Sct's decision under US v. Massaro." (Pet. at 12.)

The Court liberally construes this statement as suggesting Whitby was also unaware of Apprendi, Kaua, Maugaotega, and Jones, and believes the statute was tolled until he became aware of them. This argument is unavailing because Whitby's conviction was final on direct review no later than July 26, 1998, and he is seeking collateral review of his conviction. "State convictions

are final `for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for writ of certiorari has elapsed or a timely petition has been finally denied.'" Beard v. Banks, 542 U.S. 406, 411 (2004) (quoting

Caspari v. Bohlen, 510 U.S. 383, 390 (1994)). 16

It is well-settled that the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny, including

Blakely v. Washington, 524 U.S. 296 (2004), United States v. Booker, and Cunningham v. California, 549 U.S. 270 (2007)9 does not apply retroactively to cases on collateral review. See

Schriro v. Summerlin, 542 U.S. 348, 358 (2004); Cooper-Smith v. Palmateer, 397 F.3d 1236, 1246 (9th Cir. 2005) (Apprendi is not retroactive on collateral review); Schardt v. Payne, 414 F.3d 1025, 1027, 1036 (9th Cir. 2005) (Blakely is not retroactive); United States v. Cruz, 423 F.3d 1119, 1121 (9th Cir. 2005) (Booker is not retroactive on collateral review); Butler v. Curry, 528 F.3d 624, 639 (9th Cir. 2008) (Cunningham is not retroactive). Whitby's claims for relief are not based on newly discovered facts that could not have been discovered through the exercise of due diligence, therefore, § 2244(d)(1)(D), does not The Court interprets Whitby's reference to Maugaotega, to mean that the Court should examine whether the limitation period was tolled under § 2244(d)(1)(C) by the Supreme Court's decision in Cunningham v. California, 549 U.S. 270 (2007), which forms the basis for the state court's rejection of Hawaii's prior sentencing regime. Cunningham, as noted, did not announce a new rule of constitutional law, is not retroactive on collateral review, and cannot toll the statute of limitations under § 2244(d)(1)(C). See Butler, 528 F.3d at 639. Insofar as Whitby claims relief based on the Hawaii Supreme Court's implementation of Apprendi's rule after Cunningham, however, this claim also fails because the Hawaii Supreme Court's decisions do not constitute rights newly recognized by the United States Supreme Court made retroactively applicable to cases on collateral review. See 28 U.S.C. § 2244(d)(1)(C). 17
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apply.

To the extent that Apprendi and its progeny prompted

Whitby to seek federal habeas relief when he became aware of them, Apprendi is the legal predicate for some of Whitby's claims, not the factual predicate or evidence, relevant to his guilt or sentence. See Hasan v. Galaza, 254 F.3d 1150, 1154 n. 3 (9th Cir. 2001) (AEDPA statute of limitations begins to run when the petitioner knows the important facts, not when the petitioner recognizes their legal significance). Because Whitby was aware

of the pertinent facts at the time his conviction became final, application of section 2244(d)(1)(D) does not alter the statute of limitation calculation. D. Petition IV Did Not Toll the Statute Whitby filed his second state post-conviction proceeding, Petition IV, on February 20, 2008, more than three years after the statute of limitation had expired. Petition IV

therefore neither tolled nor "restarted" the statute of limitation under § 2244(d)(2). See Ferguson v. Palmateer, 321

F.3d 820, 823 (9th Cir. 2003)(holding that filing a subsequent post-conviction petition after the statute of limitation expires does not revive or restart the limitation period); Jimenez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001) (same). IV. CONCLUSION

For the foregoing reasons, the Petition is time-barred and is DISMISSED with prejudice. 18 A Certificate of Appealability

and leave to proceed in forma pauperis on appeal are DENIED because (1) dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable, and (2) Whitby has not made a substantial showing of the denial of a constitutional right. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); Rule 11(a), Rules Governing § 2254 Proceedings. IT IS SO ORDERED. Dated: August 10, 2010, Honolulu, Hawaii. See

/S/ Helen Gillmor Helen Gillmor United States District Judge

Whitby v. Thomas, Civ. No. 10-00287 HG; ORDER DISMISSING PETITION AS TIME-BARRED AND DENYING CERTIFICATE OF APPEALABILITY; psa/Habeas/dmp 2010/SOL/Whitby 10-287 HG (SOL)

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