Tierney v. Abercrombie
Filing
133
ORDER DENYING PETITIONER'S MAY 22, 2012 MOTION FOR RECONSIDERATION UNDER RULE 60(b) re: 101 , 124 . Signed by JUDGE LESLIE E. KOBAYASHI on 8/29/2012. [Order further denies any request for certificate of appealability] (afc)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
MICHAEL C. TIERNEY,
)
)
Petitioner,
)
)
vs.
)
)
GOVERNOR NEIL ABERCROMBIE,
)
)
Respondent.
)
_____________________________ )
No. 1:11-cv-00246 LEK-RLP
ORDER DENYING PETITIONER’S
MAY 22, 2012 MOTION FOR
RECONSIDERATION UNDER RULE
60(b)
ORDER DENYING PETITIONER’S MAY 22, 2012 MOTION FOR
RECONSIDERATION UNDER RULE 60(b)
Before the court is Petitioner’ fifth motion for
reconsideration (“Motion”) of the Order adopting the Findings and
Recommendation (“F&R”) to deny his Amended Petition for writ of
habeas corpus brought under 28 U.S.C. § 2254 (“Amended
Petition”), and denying a certificate of appealability (“COA”).
See Ord., ECF #42; Mot., ECF #101; Suppl., ECF #124.
Respondent
has filed an Opposition to the Motion and a Supplement to the
Opposition.
Replies.
ECF #112, #129.
Petitioner has filed several
See ECF #123, #130, #132.
For the following reasons, Petitioner’s May 22, 2012
Motion for Reconsideration, ECF #101, and July 25, 2012
Supplement to the Motion, ECF #124, are DENIED.
To the extent
that a certificate of appealability is required, it is DENIED.1
1
The Motion is suitable for disposition without a hearing
pursuant to Rules LR7.2(d) and LR99.16.2(a) of the Local Rules of
Practice for the District of Hawai`i (“Local Rules”).
I.
BACKGROUND2
On October 27, 2009, Petitioner was convicted of Theft
and Burglary, both in the Second Degree in CR No. 08-1-00869.
Although Petitioner was represented by a deputy public defender
at his arraignment and plea, the trial court granted his request
to proceed pro se at trial with standby counsel, after finding
that Petitioner knowingly and intelligently waived his right to
counsel.
Petitioner was appointed new counsel at sentencing and
on appeal, Walter Rodby, Esq.
On December 29, 2010, the Hawai‘i Intermediate Court of
Appeals (“ICA”) affirmed Petitioner’s conviction.
The Hawai‘i
Supreme Court rejected Petitioner’s pro se application for
certiorari on March 7, 2011.
On March 16, 2011, Petitioner moved
for relief from judgment, which the Hawai`i Supreme Court
rejected on March 18, 2011.
On May 5, 2011, Petitioner filed the Amended Petition
challenging his conviction in CR No. 08-1-00869, raising four
grounds for relief: (1) denial of the right to counsel (Ground
One); (2) denial of the right to an impartial judge (Ground Two);
(3) jury tampering (Ground Three); and (4) insufficient evidence
(Ground Four).
ECF #14.
The magistrate judge found that Ground
One was exhausted but without merit because (1) Petitioner’s
2
The parties and the court are familiar with the factual
and legal history of this case, and the court repeats only what
is relevant to Petitioner’s present Motion.
2
claim that the deputy attorney general threatened to kill him was
unsupported by any evidence and patently frivolous, and (2)
Petitioner knowingly and intelligently waived his right to
counsel.
F&R, ECF #33 at 12-18.
The magistrate judge then found
that Petitioner “technically” exhausted but procedurally
defaulted Grounds Two, Three and Four.
Id. at 18-19, 21.
Petitioner failed to show cause, prejudice, or actual innocence
to excuse this procedural default, and in particular, could not
use his appellate counsel’s failure to raise these claims as
cause, because Petitioner failed to raise a separate and
exhausted claim of ineffective assistance of pre-trial,
sentencing, or appellate counsel to the state courts.
Id. at 21.
On August 5, 2011, the magistrate judge found and recommended
that the Amended Petition and COA should be denied.
Id. at 23-
25.
This court adopted the F&R over Petitioner’s objections
on September 30, 2011.
ECF #42.
Petitioner appealed, and the
Ninth Circuit Court of Appeals denied a certificate of
appealability on November 28, 2011.
DktEntry 5.
See App. No. 11-17475,
On January 24, 2012, the appellate court denied
rehearing en banc.
Id.
DktEntry 11.
On March 19, 2012, the
United States Supreme Court denied certiorari and later denied
the petition for rehearing.
Id.
DktEntry 14, 16.
3
On May 9, 2012, after remand from the appellate court,
this court denied Petitioner’s first two motions for
reconsideration brought under Fed. R. Civ. P. 60(b) on their
merits.
ECF #90.
On May 17, 2012, the court denied Petitioner’s
third and fourth Rule 60(b) Motions.
ECF #98.
On May 22, 2012,
Petitioner filed the present Rule 60(b) Motion.
ECF #101.
July 25, 2012, Petitioner filed the Supplement.
On
ECF #124.
On June 13, 2012, Petitioner filed a state petition for
postconviction relief under Hawai`i Rules of Penal Procedure
(HRPP) 40, raising inter alia, and for the first time to the
state courts, his claims of ineffective assistance of pre-trial,
sentencing, and appellate counsel.
See Exh. A, ECF #129-1.
On
July 16, 2012, the State answered the Rule 40 Petition; this
petition remains pending in the state courts.
See Exh. B, ECF
#129-1.
II.
LEGAL STANDARD
Petitioner moves for relief under Fed. R. Civ. P.
60(b), alleging that there is new evidence supporting
reconsideration.
Rule 60(b) provides relief from judgment for
the following reasons:
(1) mistake, inadvertence, surprise, or excusable
neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to
move for a new trial under Rule 59(b);
4
(3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an
opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that has
been reversed or vacated; or applying it prospectively
is no longer equitable; or
(6) any other reason that justifies relief.
Motions to reconsider are committed to the sound
discretion of the trial court and must set forth facts or law of
a strongly convincing nature to induce the court to reverse its
prior decision.
See e.g., White v. Sabatino, 424 F. Supp. 2d
1271, 1274 (D. Haw. 2006).
Three grounds justify
reconsideration: (1) an intervening change in controlling law;
(2) the availability of new evidence; and (3) the need to correct
clear error or prevent manifest injustice.
Id. (citing Mustafa
v. Clark Cnty. Sch. Dist., 157 F.3d 1169, 1178-79 (9th Cir.
1998)).
III.
DISCUSSION
For those seeking reconsideration in habeas
proceedings, “Rule 60(b) may not be used to avoid the prohibition
set forth in 28 U.S.C. § 2244(b) against second or successive
petitions.”
Lopez v. Ryan, 2012 WL 1520172 *4 (9th Cir. Apr. 30,
2012) (“Lopez I”).
When a Rule 60(b) motion advances a new
ground for relief or “attacks the federal court’s previous
resolution of a claim on the merits[,]” it constitutes a second
5
or successive habeas petition.
535 (2005).
Gonzalez v. Crosby, 545 U.S. 524,
“On the merits” refers “to a determination that
there exist or do not exist grounds entitling a petitioner to
habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d).”
n.4.
Id. at
On the other hand, a Rule 60(b) motion is not a second or
successive petition if it “merely asserts that a previous ruling
which precluded a merits determination was in error — for
example, a denial for such reasons as failure to exhaust,
procedural default, or statute-of-limitations bar.”
A.
Id.
Claim One: State v. Tierney
Petitioner argues that the Hawai`i Supreme Court’s
recent order in State v. Tierney, No. SCWC 29939, --- P.3d ---,
2012 WL 1624006 (Haw. May 7, 2012), constitutes newly discovered
evidence warranting reconsideration of the denial of his habeas
petition.
In Tierney, the Hawaii Supreme Court vacated and
remanded Petitioner’s misdemeanor conviction in CR No. 1P1-086561,3 holding
[W]hen a court orders an examination to determine
whether a defendant is fit to proceed to trial pursuant
to Hawaii Revised Statutes (HRS) § 704-404(1), and the
defendant refuses to cooperate with the examiner, the
examiner must produce a report of the examination that
expressly states whether ‘such unwillingness of the
defendant was the result of physical or mental disease,
disorder, or defect,” if possible. HRS § 704-404(5). If
it is not possible for the examiner to make that
3
Petitioner was convicted of Promoting a Dangerous Drug in
the Third Degree for smoking marijuana on the beach. See State
v. Tierney, 2012 WL 1624006 (Haw. 2012).
6
determination, the examiner must expressly state in the
report that it is not possible to determine whether the
defendant’s unwillingness is the result of physical or
mental disease, disorder, or defect.
Tierney, 2012 WL 1624006 *1.
The Hawai`i Supreme Court held
that the circuit court abused its discretion by proceeding to
trial without the examiner’s explicit determination regarding
Petitioner’s refusal to cooperate with the examination, and
remanded for proceedings consistent with its opinion.
Id. at
*1, *16.
Petitioner claims that the state court has or may soon
find that he was incompetent to stand trial in CR No. 1P1-086561, and argues that this “new evidence” suggests that he was
also incompetent during his trial in CR No. 08-1-00869, the
conviction at issue here.
ECF #123.
See Mot., ECF #101, Pet’r Response,
Neither State v. Tierney, nor the lower court on
remand has yet held that Petitioner is or was incompetent to
stand trial in CR No. 1P1-08-6561, however, or suggested that
Petitioner was also incompetent to stand trial in CR No. 8-100869, the theft conviction challenged here.
Rather, the
supreme court held that the circuit court abused its discretion
by not requiring a more explicit statement from the examiner
regarding Petitioner’s refusal to cooperate, before proceeding
to trial on its own determination that Petitioner was fit to
proceed.
Whether Petitioner was competent to stand trial for
his misdemeanor charge is the substance of the remand to the
7
state court in State v. Tierney.
Whether he was competent to
represent himself in CR No. 08-1-8169, is currently before the
state courts in Petitioner’s pending Rule 40 Petition.
See
Resp.’s Exh. A, ECF #129-2 at 13.
Petitioner is challenging this court’s decision to
deny Ground One on its merits based on a new theory for relief
allegedly supported with new law.
This new and unexhausted
claim is precisely the type of claim that the Supreme Court
determined is not cognizable on a motion for reconsideration
under Rule 60(b)(2).
See Gonzalez, 545 U.S. at 531-32,
538(citing Rodwell v. Pepe, 324 F.3d 66, 69 (1st Cir. 2003));
see also McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009)
(“A habeas petition is second or successive only if it raises
claims that were or could have been adjudicated on the
merits.”); Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir.
2001) (per curiam), cert. den., 538 U.S. 984 (2003).
As such,
this court is prohibited from reviewing this claim under
§ 2244(b) as a second or successive claim.
B.
Claim Two: IAC Claims and Martinez v. Ryan, et al.
Petitioner argues in his Supplement that Martinez v.
Ryan, --- U.S. ---, 132 S. Ct. 1309 (2012) constitutes new
evidence supporting reconsideration of the denial of his habeas
8
petition.4
See Supp. to Mot., ECF #124.
In Martinez, the
Supreme Court held that the ineffective assistance of counsel
during initial review collateral proceedings, in states where
ineffective assistance of trial counsel claims must be brought
on collateral review rather than on direct appeal, may be used
to establish cause for a prisoner’s procedural default of such
claims.
132 S. Ct. at 1315.
Martinez therefore “changed the
landscape with respect to whether ineffectiveness of
postconviction counsel may establish cause for procedural
default,” by modifying “the unqualified statement in Coleman [v.
Thompson, 501 U.S. 722 (1991)], that an attorney’s ignorance or
inadvertence in a postconviction proceeding does not qualify as
cause to excuse a procedural default.”
Id.; see also Lopez v.
Ryan, 678 F.3d 1131, 1133 (9th Cir. 2012) (“Lopez II”).
Martinez therefore creates a narrow, non-constitutional
exception to Coleman: “Inadequate assistance of counsel at
initial-review collateral proceedings may establish cause for a
prisoner’s procedural default of a claim of ineffective
assistance at trial.”
132 S. Ct. at 1315 (emphasis added).
Petitioner argues that Martinez supports
reconsideration of this court’s holding that his unexhausted
ineffective assistance of pre-trial and appellate counsel claims
4
Although not explicit, Petitioner may also be arguing that
Martinez constitutes a change in controlling law sufficient to
support reconsideration.
9
do not constitute cause to excuse his procedural default in
Grounds Two, Three, and Four.
Martinez.
Petitioner misapprehends
Martinez does not hold that prisoners, like
Petitioner, who failed to raise any ineffective assistance of
counsel claim on direct appeal and failed to bring a collateral
review postconviction petition before commencing federal habeas
proceedings are excused from their procedural default.
To the
contrary, Martinez simply modifies Coleman’s once unqualified
rule that an attorney’s ignorance or inadvertence in a
postconviction proceeding cannot qualify as cause because there
is no right to counsel in postconviction proceedings.
501 U.S. at 736.
Coleman,
In Martinez, the Court recognized that, when a
postconviction proceeding is the first time under state law that
ineffective assistance of trial counsel claims can be raised,
ineffective assistance of postconviction counsel may qualify as
cause to excuse a procedural default.
1315.
Martinez, 132 S. Ct. at
The Court declined to determine whether there is a
constitutional right to counsel in such collateral proceedings,
however.
Id.
First, Hawaii, unlike Arizona, does not require that a
petitioner raise ineffective assistance of trial counsel claims
on collateral proceedings, but presumes that, unless trial and
appellate counsel are the same, ineffective assistance of trial
counsel claims will be brought on direct appeal.
10
Petitioner’s
attorney, Rodby, did not raise an ineffective assistance of
trial counsel claim on direct appeal.
Nor could he, as
Petitioner represented himself at trial and Petitioner’s claims
that his pre-trial attorney tried to kill him were frivolous and
therefore not subject to appeal.
Martinez’s holding, insofar as
Petitioner tries to apply it to his failure to raise an
ineffective assistance of counsel claim against his pre-trial or
trial attorney, who Petitioner claims threatened to kill him,
does not constitute a change in controlling law, is inapposite,
and is frivolous.
Second, when he commenced this action, Petitioner had
never properly brought any postconviction petition nor raised
any ineffective assistance of counsel claims in the state
courts.5
Martinez does not constitute a change in controlling
law on these facts.
While “Martinez constitutes a remarkable —
if ‘limited,’- . . . development in the Court’s equitable
jurisprudence[,]” Lopez II, 678 F.3d at 1136, it does not change
the otherwise settled law that ineffective assistance of counsel
may constitute cause for the procedural default of another claim
only if the independent ineffective assistance of counsel claim,
itself, has been exhausted in state court.
5
See Edwards v.
Petitioner filed a non-conforming Rule 40 petition
challenging the Hawaii Paroling Authority’s decision to deny him
parole, SPP No. 10-1-0018. See ECF No. 24-36. This petition was
dismissed after Petitioner failed to complete the proper forms
and was affirmed on appeal. See F&R, ECF #33 at 6.
11
Carpenter, 529 U.S. 446, 452-53 (2000); Murray v. Carrier, 477
U.S. 478, 488-89 (1986); see also F&R, ECF #33 at 21; Ord.
Denying Pet’rs Rule 60(b) Motions, ECF #90 at 10-12.
Edwards
involved a petitioner who pointed to errors by his state counsel
on direct appeal as the “cause” for his default of another
claim, as Petitioner tries to do here.
529 U.S. at 450–51.
The
Supreme Court held that because the basis for the asserted
“cause”—ineffective assistance on appeal—was a constitutional
claim and could be an independent basis for relief, it must also
be exhausted properly in the state courts.
Id. at 453.
Thus, any alleged ineffective assistance of counsel by Rodby on
direct appeal cannot serve as cause here because Petitioner has
at this point failed to raise such a claim and it is also likely
procedurally defaulted.
Third, Petitioner’s argument that Maples v. Thomas,
132 S. Ct. 912 (2012) supports reconsideration is equally
unavailing.
Maples held that, on its very specific and unusual
facts, when postconviction counsel abandons a capital prisoner
without notice so that he misses a filing deadline to appeal in
the postconviction proceedings, cause exists to excuse
procedural default.
Id. at 927.
Petitioner argues that Rodby,
his attorney on direct appeal, abandoned him by failing to file
a petition for writ of certiorari to the Hawaii Supreme Court,
thus constituting cause to excuse his procedural default.
12
Petitioner is mistaken.
First, the Hawaii Supreme Court
accepted, considered and rejected Petitioner’s pro se petition
for certiorari.
There was no procedural default of any claims
that Petitioner raised on direct review and this court
explicitly denied it on its merits.
Second, in Hawaii a
prisoner is not required to seek certiorari to exhaust his
claims.
See Haw. R. App. P. 40.3 (2009).
Petitioner’s claims
on direct appeal were fully exhausted when Rodby appealed to the
ICA.
There was no requirement that Rodby seek certiorari and
Petitioner’s claims were not procedurally defaulted by Rodby’s
failure to do so.
Rodby does not represent Petitioner in his
recently filed postconviction proceedings and cannot be seen as
having “abandoned” him.
Maples is inapposite to Petitioner’s
claims.
Under Gonzalez a district court has jurisdiction to
consider a Rule 60(b) motion challenging a procedural default
ruling.
Petitioner, however, has already sought reconsideration
of this court’s holding that he failed to exhaust any
ineffective assistance of counsel claims, and that they cannot,
therefore constitute cause to excuse his procedural default of
Grounds Two, Three, and Four.
See ECF #57, #67.
Petitioner
still fails to provide evidence showing that he exhausted his
ineffective assistance of counsel claims regarding his pretrial, sentencing, or appellate attorney before filing his
13
Amended Petition, before the magistrate judge issued the F&R,
before this court adopted the F&R, or before he moved for
reconsideration.
he did not.
To the contrary, the record demonstrates that
Citation to Martinez is unavailing and does not
constitute “new evidence,” or a change in controlling law
justifying reconsideration.
Petitioner never raised an IAC
claim in state postconviction proceedings or on direct appeal,
therefore Martinez has no application to Petitioner’s claims.
C.
Petitioner’s New Claim For Transfer To Hawaii
Petitioner now argues that the State must transfer him
back to Hawaii from Arizona pursuant to Haw. Rev. Stat. § 353H7.
Petitioner was transferred to Arizona long after this court
denied his habeas petition and that denial was affirmed.
This
new claim is not part of Petitioner’s challenge to his
conviction in the present proceeding and must be raised in a
separate action, after it has been fully exhausted in the state
courts.
IV.
CERTIFICATE OF APPEALABILITY
To the extent a certificate of appealability is needed
to appeal this Order, see United States v. Washington, 653 F.3d
1057, 1065 n.8 (9th Cir. 2011) (noting that it is an open
question whether a COA is required to appeal the denial of a
legitimate Rule 60(b) motion), cert. denied, ––– U.S. ––––, 132
S.Ct. 1609 (2012), the court finds that reasonable jurists could
14
not debate its resolution of Petitioner’s Rule 60(b)(6) motion.
See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484
(2000).
Accordingly, a certificate of appealability is DENIED.
V.
CONCLUSION
Petitioner’s first claim, regarding State v. Tierney’s
effect on his conviction in CR No. 8-1-8169, is a new claim that
challenges a determination on the merits that he knowingly and
intelligently waived his right to counsel.
As such, it is the
equivalent of a second or successive petition.
The court may
not consider this general claim of “new evidence,” now framed as
a question of whether he was incompetent to represent himself at
trial, absent authorization from the Ninth Circuit.
See 28
U.S.C. § 2244(b) (3)(A).
Petitioner’s second claim, that Martinez v. Ryan,
constitutes new evidence or an intervening change in controlling
law supporting reconsideration, does not establish by clear and
convincing evidence that, but for this new case, no reasonable
fact finder would have found him guilty of theft and burglary,
nor show a need to correct clear error or prevent manifest
injustice.
The court declines to reconsider its prior rulings
that Petitioner failed to show cause to excuse his procedural
default in Grounds Two, Three, and Four.
arguments are similarly without merit.
Petitioner’s other
Petitioner’s May 22, 2012
Rule 60(b) Motion and July 25, 2012 Supplement, ECF #101 and
15
#124, are DENIED.
Any request for certificate of appealability
is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 29, 2012.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
Tierney v. Abercrombie, Civ. No. 11-00246 LEK-RLP; ORDER DENYING PETITIONER’S MAY 22,
2012 MOTION FOR RECONSIDERATION UNDER RULE 60(b) ; psas\recon\2012\Tierney 5th R60
stuff\Tierney 11-246 lek (dny Rule 60(b) motions)
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