Hernandez v. USA

Filing 4

ORDER REGARDING "REQUEST CLARIFICATION AND RECONSIDERATION ON OBJECTIONS ENTERED" AND DENYING "MOTION TO MAKE A COMPLETE FINDING OF FACT AND CONCLUSION OF LAW TO RECTIFY A GRAVE MANIFEST MISCARRIAGE OF JUSTICE, PURSUANT TO FED.R.CIV.P. , RULE 52(a)" - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 9/12/11. ("The court now directs the Clerk of Court to enter judgment consistent with the ruling filed on June 29, 2011. Hernandez is reminded that if, after judgment has been entered, he seeks reconsideration, he is limited to a memorandum that is no longer than either 30 pages or 9000 words. If Hernandez opts for the page limit rather than the word limit, Hernandez must comply with the court's formatting r ules.") (emt, )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). Todd Anthony Hernandez served by first class mail at the address of record on September 12, 2011.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,

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Plaintiff,
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vs.
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TODD ANTHONY HERNANDEZ,
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Defendant.
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_____________________________ )

CR. NO. 05-00196 SOM
CIV. NO. 10-00674 SOM/KSC
ORDER REGARDING “REQUEST
CLARIFICATION AND
RECONSIDERATION ON OBJECTIONS
ENTERED” AND DENYING “MOTION
TO MAKE A COMPLETE FINDING OF
FACT AND CONCLUSION OF LAW TO
RECTIFY A GRAVE MANIFEST
MISCARRIAGE OF JUSTICE,
PURSUANT TO FED. R. CIV. P.,
RULE 52(a)”

ORDER REGARDING “REQUEST CLARIFICATION AND RECONSIDERATION
ON OBJECTIONS ENTERED” AND DENYING “MOTION TO MAKE A
COMPLETE FINDING OF FACT AND CONCLUSION OF LAW TO
RECTIFY A GRAVE MANIFEST MISCARRIAGE OF JUSTICE,
PURSUANT TO FED. R. CIV. P., RULE 52(a)”
On September 9, 2011, Todd Hernandez filed two
documents: his “Request Clarification and Reconsideration on
Objections Entered,” and his “Motion To Make Complete Finding of
Fact and Conclusion of Law To Rectify a Grave Manifest
Miscarriage of Justice, Pursuant to Fed. R. Civ. P., Rule 52(a).”
The Request asks several questions.
First, the Request asks why a civil case number was
assigned to this matter.

This court responds that its practice

is to assign any petition for relief under 28 U.S.C. § 2255 a
civil case number for administrative purposes, while also noting
the case number of the underlying criminal case on its documents.
The civil case number reflects the reality that a § 2255 petition

is not itself a criminal proceeding.

Thus, while based on an

underlying judgment in a criminal case, it does not, for example,
commence with an indictment, and cannot result in the kind of
judgment that might be entered in a criminal case.

Among other

things, the presumption of innocence applicable to a person
charged with a crime does not apply in a § 2255 proceeding, the
Government does not have the burden of proving its position
beyond a reasonable doubt in a § 2255 proceeding, and an indigent
petitioner is not entitled to court-appointed counsel in a § 2255
proceeding.

Nor is a judgment in a § 2255 proceeding subject to

the shorter appeal deadline applicable in a criminal action.

The

assignment of a civil case number does not prejudice Hernandez in
any way.

If the court simply filed documents under the criminal

case number without reflecting any civil case number, Hernandez
would not thereby have greater rights.
Second, Hernandez asks whether a proceeding brought
under Rule 60(b)(3) of the Federal Rules of Civil Procedure must
be brought within one year of judgment.

The court refers

Hernandez to Rule (c)(1) of the Federal Rules of Civil Procedure,
which states, “A motion under Rule 60(b) must be made within a
reasonable time–and for reasons (1), (2), and (3) no more than a
year after the entry of the judgment or order or the date of the
proceeding.”

However, the court cannot discern the applicability

of Rule 60(b)(3) to this § 2255 proceeding, as Rule 60(b)(3)

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applies to proceedings occurring after a judgment has been
entered in a civil case, and there has been no judgment entered
in the present civil action yet.
Third, Hernandez asks the court to confirm that Rule 2
includes a statement he provides on page 2 of his Request.

The

statement he quotes appears in the note on the 1976 adoption of
the rule, not in the text of the rule itself.

The statement says

that a movant “should not be barred from an appropriate remedy
because he misstyled his motion.”

The court cannot discern the

applicability of this language to the present proceeding, as
Hernandez has not been denied relief based on a misstyling of his
§ 2255 petition.

To the contrary, Hernandez was asked by the

court to indicate whether he wanted his papers, which purported
to be based on Rule 60(b) of the Federal Rules of Civil
Procedure, considered to be his § 2255 petition.

When Hernandez

said that he did, the court so construed his papers.
Fourth, Hernandez asks whether his documents are to be
liberally construed, but he does not point to any specific
instance in which his documents were not liberally construed.
To the extent the Request seeks relief other than the
preceding responses by this court, the Request is denied, as it
either (1) raises matters already ruled on by the court without
presenting reasons that the court should reconsider the matters,

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or (2) raises new matters without presenting reasons that the
matters could not have been timely raised.
The court turns next to the Motion.

The Motion asks

this court to issue findings of fact and conclusions of law
pursuant to Rule 52 of the Federal Rules of Civil Procedure.
court declines to provide such findings and conclusions.

The

Rule

52(a)(1) provides for such findings and conclusions in “an action
tried on the facts without a jury or with an advisory jury.”
This § 2255 proceeding was not the subject of any trial.
Instead, this court ruled on what it construed as a motion or
petition for relief under § 2255.

Rule 52(a)(3) states, “The

court is not required to state findings or conclusions when
ruling on a motion under Rule 12 or Rule 56 or, unless these
rules provide otherwise, on any other motion.”
Hernandez’s Motion then asserts that he is attempting
to comply with the court’s orders.

Despite that assertion,

nothing in the Motion actually complies with the court’s
direction that, if Hernandez finds that this court has overlooked
issues he timely raised, Hernandez identify those issues in a
manner detailed by the court. Specifically, on page 31 of its
order of June 29, 2011, which denied the § 2255 petition, the
court stated:
For each such issue Hernandez identifies, his written
submission must include (1) the ECF No. Of the document
in which the issue was raised (i.e., ECF Nos. 157, 158,
159, 163, 176, 178, or 179), (2) the exact page number
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on which the issue was raised, and (3) a quotation that
consists of 25 words or less from the specified page .
. . that sets forth the missed issue. In no event may
Hernandez include in his written submission anything
other than the above-enumerated three items for each
issue he says the court overlooks. Any argument not so
identified will be deemed to be waived.
Hernandez previously submitted a document that did not comply
with the court’s instructions.

The court struck the document and

extended the deadline for Hernandez to identify overlooked issues
in the form ordered by the court.

Hernandez now submits the

Motion, but it too is noncompliant.
The court has nevertheless studied the Motion, trying
to determine whether anything in it suggests that the court has
overlooked a properly raised issue.

Discerning no overlooked

issue, the court denies the Motion to the extent it seeks any
relief.
The court now directs the Clerk of Court to enter
judgment consistent with the ruling filed on June 29, 2011.
Hernandez is reminded that if, after judgment has been entered,
he seeks reconsideration, he is limited to a memorandum that is
no longer than either 30 pages or 9000 words.

If Hernandez opts

for the page limit rather than the word limit, Hernandez must
comply with the court’s formatting rules.

That is, text should

be double-spaced except for his contact information, the case
name, footnotes, quotations, and exhibits.

If he uses the font

type he used for his Motion To Make Complete Finding of Fact and

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Conclusion of Law To Rectify a Grave Manifest Miscarriage of
Justice, Pursuant to Fed. R. Civ. P., Rule 52(a), he must use a
type size no smaller than the type size he used for that document
(i.e., 12-point type).

The type size applies to footnotes (that

is, footnotes may not be in smaller type).

Hernandez may not

switch the font to squeeze more letters into a line.

If he uses

a font that results in more letters on a line, such as Times New
Roman, he must increase the type size.

If Hernandez opts for the

word limit, he is reminded that, as the court noted in its order
of June 29, 2011, the word limit includes headings and footnotes.
The court will disregard anything exceeding whichever limit
Hernandez selects, and the court will not entertain any request
to exceed the limit.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, September 12, 2011.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

United States v. Todd A. Hernandez; CR. NO. 05-00196 SOM; CIV.
NO. 10-00674 SOM/KSC; ORDER REGARDING “REQUEST CLARIFICATION AND
RECONSIDERATION ON OBJECTIONS ENTERED” AND DENYING “MOTION TO
MAKE A COMPLETE FINDING OF FACT AND CONCLUSION OF LAW TO RECTIFY
A GRAVE MANIFEST MISCARRIAGE OF JUSTICE, PURSUANT TO FED. R. CIV.
P., RULE 52(a)”

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