Tierney v. Abercrombie
Filing
42
ORDER DENYING PETITIONER'S 37 MOTION TO ORDER EXPANSION OF THE RECORD AND DENYING PETITIONER'S OBJECTIONS TO THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO DENY (1) AMENDED 14 PETITION FOR WRIT OF HABEAS CORPUS AND (2) CERTI FICATE OF APPEALABILITY AND ORDER ADOPTING THE 33 FINDINGS AND RECOMMENDATIONS: "On the basis of the foregoing, the Court HEREBY DENIESPetitioner's Objections to Magistrate's Findings and Recommendations, filed August 11, 2011, an d Motion to Order Expansion of the Record, filed August 16, 2011. The Court HEREBY ADOPTS the magistrate judge's Findings and Recommendation to Deny (1) Amended Petition for Writ of Habeas Corpus and (2) Certificate of Appealability, filed Augus t 5, 2011." Signed by JUDGE LESLIE E. KOBAYASHI on September 30, 2011. (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
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)
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Plaintiff,
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vs.
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WARDEN NOLAN P. ESPINDA,
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Defendant.
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_____________________________ )
MICHAEL C. TIERNEY
#A0102434,
CIVIL NO. 11-00246 LEK-RLP
ORDER DENYING PETITIONER’S MOTION TO ORDER EXPANSION OF THE
RECORD AND DENYING PETITIONER’S OBJECTIONS TO THE MAGISTRATE
JUDGE’S FINDINGS AND RECOMMENDATION TO DENY (1) AMENDED PETITION
FOR WRIT OF HABEAS CORPUS AND (2) CERTIFICATE OF APPEALABILITY
AND ORDER ADOPTING THE FINDINGS AND RECOMMENDATION
On August 5, 2011, the magistrate judge filed his
Findings and Recommendation to Deny (1) Amended Petition for Writ
of Habeas Corpus and (2) Certificate of Appealability (“F&R”).
On August 11, 2011, pro se Petitioner Michael C. Tierney
(“Petitioner”), filed his objections to the F&R (“Objections”).
On August 16, 2011, Petitioner filed a Motion to Order Expansion
of the Record (“Motion”).
Respondent Nolan P. Espinda
(“Respondent”) filed his response to Petitioner’s Objections and
Motion (“Response”) on September 13, 2011.1
1
The Court finds
Petitioner also filed a Reply to the Respondent’s Response
on September 20, 2011. [Dkt. no. 41] Local Rule LR74.2 states
that “[n]o reply in support of objections or crossobjections
to a magistrate judge’s case-dispositive proposed order,
findings, or recommendations shall be filed without leave of
court.” Petitioner did not obtain leave to file a Reply to the
(continued...)
these matters suitable for disposition without a hearing pursuant
to Rules LR7.2(d) and LR74.2 of the Local Rules of Practice of
the United States District Court for the District of Hawai`i
(“Local Rules”).
After careful consideration of the parties’
submissions and the relevant legal authority, the Court HEREBY
DENIES Petitioner’s Motion and Objections and ADOPTS the
magistrate judge’s F&R, for the reasons set forth below.
BACKGROUND
The parties and the Court are familiar with the factual
and legal history of this case, and the Court will only repeat
the history that is relevant to the instant Objections and
Motion.
Petitioner filed his amended petition for writ of
habeas corpus under 28 U.S.C. § 2254 (“Amended Petition”) on
May 15, 2011, challenging his judgment of conviction and sentence
filed in the Circuit Court of the First Circuit (“circuit
court”), State of Hawai‘i, on October 27, 2009.
[Dkt. no. 14.]
Petitioner was charged on June 5, 2008 in CR. No. 08-1-0869, with
Theft and Burglary, both in the Second Degree.
Answer, filed 6/27/11 (dkt. no. 24), at 1.]
[Respondent’s
Petitioner was first
represented by Deputy Public Defender Edward Harada at his
1
(...continued)
Respondent’s Response, and the Reply addresses only Petitioner’s
Objections; it does not address issues raised in the Motion.
This Court, therefore, did not consider Petitioner’s Reply in
ruling on the Objections.
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arraignment and plea.
[Id. at 1-2.]
After entering a plea of
not guilty, Mr. Harada orally moved to withdraw as counsel.
The
circuit court granted the motion, finding a conflict of interest
existed between Petitioner and the Office of the Public Defender.
[Id. at 2.]
Petitioner later alleged that Mr. Harada threatened
to kill him at the arraignment and plea, although this allegation
is not supported by any evidence in the record.
The circuit
court appointed Arthur Indiola, Esq., to represent Petitioner,
but during pretrial proceedings, Petitioner waived the right to
counsel, and the circuit court granted his request to proceed pro
se.
The circuit court retained Mr. Indiola as standby counsel.
[Id.]
During the trial’s jury selection, a potential
replacement juror, Richard Primak, stated that he was
a probation officer and indicated that Petitioner looked
familiar.
[Respondent’s Answer, Appx. L, Tr. 1/12/2009 (dkt. no.
24-14), at 59.]
The court excused Mr. Primak and instructed the
jury to draw no inferences from the comment because Petitioner
had never been on probation in Mr. Primak’s office.
On
January 15, 2009, the jury unanimously convicted Petitioner of
both charges.
[Respondent’s Answer at 4, 8.]
The circuit court appointed Walter Rodbey, Esq., as
appellate counsel.
[Respondent’s Answer, Appx. R, Order
Appointing Counsel (dkt. no. 24-22).]
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Petitioner timely
appealed, arguing that his rights to counsel, a fair and
impartial judge and fair and impartial jury were violated, and
that the evidence was insufficient to convict him.
[Respondent’s
Answer, Appx. AA, Opening Br. on Appeal (dkt. no. 24-32).]
On
December 29, 2010, the Hawai‘i Intermediate Court of Appeals
(“ICA”) affirmed the conviction by summary disposition order, and
the Hawai‘i Supreme Court rejected Petitioner’s application for a
writ of certiorari on March 7, 2011.
[Respondent’s Answer at 12
(citing dkt. nos. 24-34 and 24-35).]
In the Amended Petition, Petitioner raised four grounds
for relief: (1) Ground One – denial of the right to counsel; (2)
Ground Two – denial of the right to an impartial judge; (3)
Ground Three – jury tampering; and (4) Ground 4 – insufficient
evidence.
Respondent filed an answer on June 27, 2011, and
Petitioner filed a response on July 6, 2011.
In the F&R, the magistrate judge found and recommended
that the Amended Petition and certificate of appealability be
denied.
As to Ground One, the magistrate judge found that the
claim was exhausted, but was without merit because Petitioner’s
claim that defense counsel threatened to kill him was not
supported by any evidence and was patently frivolous, and because
Petitioner waived his right to counsel.
[F&R at 12-17.]
As to
Grounds Two, Three and Four, the magistrate judge found that
Petitioner “technically” exhausted, but procedurally defaulted on
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these claims, and, therefore, they were procedurally barred.
[Id. at 18-19, 23.]
The magistrate judge denied the certificate
of appealability, finding that reasonable jurists would not find
that the denial of Ground One was debatable or wrong, or that the
denial of Grounds Two, Three, and Four as procedurally barred was
debatable.
I.
[Id. at 24-25.]
Petitioner’s Motion
Petitioner’s Motion asks that following be made part of
the record in this case: his requests for certiorari denied on
January 18, 2011, March 7, 2011, and March 18, 2011; his
ineffective assistance of counsel post-conviction petitions; the
original video-taped proceedings of his arraignment on June 16,
2008; and a copy of his supplemental pro se brief consolidated
with his motion for new trial filed in the ICA on February 11,
2010.
[Motion at 1.]
Petitioner provides no legal authority
entitling him to expand the record and does not explain in a
coherent manner why these documents or evidence are necessary.
Instead, he repeats arguments made in his Objections, and claims
that “[t]he law is clear on these crimes that were committed
against Petitioner by public defender Edward Harada, probation
officer Richard, Judge Richard Perkins and D.P.A. Peter Massack,
‘he gets a hearing’ on these crimes committed against him by
these public officials.”
[Id. at 2 (emphasis added).]
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II.
Objections and Response
A.
Objections
Petitioner raises the following objections to the F&R:
1) all the Grounds were exhausted; 2) the failure to review his
claims will result in a fundamental miscarriage of justice; and
3) the certificate of appealability should be granted because
Petitioner has made a substantial showing of a denial of a
constitutional right.
B.
[Objections at 1-4.]
Response
In the Response, Respondent argues that Petitioner’s
Objections are without merit.
First, to the extent Petitioner
argues that he exhausted his claims and that initiation of
collateral attack is not necessary, his argument is nonsensical
because the magistrate judge found that Ground One was exhausted,
and Grounds Two, Three, and Four were “technically” exhausted.
Moreover, because the magistrate judge found that the Grounds
were exhausted, there was no need for Petitioner to raise the
issue of collateral attack in his Objections.
[Response at 4.]
Next, Respondent asserts that Petitioner fails to meet
his burden of showing that the failure to review his claim would
result in a fundamental miscarriage of justice.
To the extent
Petitioner raises a claim of actual innocence, Respondent points
to the magistrate judge’s finding that Petitioner presented no
new evidence establishing that he is actually innocent, or, that
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no reasonable juror would lack reasonable doubt of his guilt.
[Id. at 4-5.]
In the absence of any new evidence, Petitioner’s
objection must fail.
[Id. at 7.]
With respect to the certificate of appealability,
Respondent argues that Petitioner fails to meet his burden of
showing that reasonable jurists would find the F&R’s assessment
of the constitutional claims debatable or wrong.
He also
presented no evidence to support his statements that the circuit
court judge threatened him, whereas the transcripts show that no
such interaction occurred.
Respondent argues that Petitioner
fails to meet his burden of showing that jurists of reason would
find debatable whether Petitioner waived his federal claims and
whether the Amended Petition states a valid claim.
[Id. at 9-
10.]
Finally, as to Petitioner’s Motion, Respondent argues
that Petitioner is not entitled to expand the record pursuant to
Rule 7 of the Rules Governing Section 2254 Cases in the United
States District Court.
In any event, several of the documents
requested by Petitioner are already part of the record in this
matter.
For example, the requested Hawai‘i Supreme Court orders
dated March 7, 2011 and March 18, 2011 are attached to
Respondent’s Answer to Petition for Writ of Habeas Corpus.
[Id.
at 11 n.2 (citing Respondent’s Answer (dkt. nos. 24-35 at 6970)).]
Respondent asks the Court to deny the Motion.
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STANDARD
Any party may file objections to a magistrate judge’s
findings and recommendation regarding a case dispositive matter.
28 U.S.C. § 636(b)(1); Fed R. Civ. P. 72(b); Local Rule LR74.2.
A judge of the court shall make a de novo
determination of those portions of the report or
specified proposed findings or recommendations to
which objection is made. A judge of the court may
accept, reject, or modify, in whole or in part,
the findings or recommendations made by the
magistrate judge. The judge may also receive
further evidence or recommit the matter to the
magistrate judge with instructions.
§ 636(b)(1).
“[I]n providing for a ‘de novo determination’
rather than de novo hearing, Congress intended to permit whatever
reliance a district judge, in the exercise of sound judicial
discretion, chose to place on a magistrate’s proposed findings
and recommendations.”
United States v. Raddatz, 447 U.S. 667,
676 (1980) (citation omitted); accord Holder v. Holder, 392 F.3d
1009, 1022 (9th Cir. 2004) (citing Raddatz).
Pursuant to Local
Rule 74.2, this Court “may consider the record developed before
the magistrate judge,” but the Court must make its “own
determination on the basis of that record.”
DISCUSSION
I.
Petitioner’s First Objection - Exhaustion
Petitioner argues at length that he has exhausted his
claims.
[Objections at 1-2.]
The F&R did not find to the
contrary.
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With respect to exhaustion, this Court has examined the
issue de novo and agrees with the F&R on this point.
The
magistrate judge properly concluded that Petitioner’s Ground One
was exhausted, and that Grounds Two, Three, and Four were
“technically” exhausted.
Petitioner has presented no reason to
reject or modify the F&R.
The Court therefore DENIES
Petitioner’s first objection to the F&R.
II.
Petitioner’s Second Objection - Miscarriage of Justice
Petitioner next argues that the failure to review his
claims will result in a fundamental miscarriage of justice, and
cites Murray v. Carrier, 477 U.S. 478, 496 (1986), for the
proposition that “procedural default would be excused, even in
the absence of counsel, when a constitutional violation has
probably resulted in the conviction of one who is actually
innocent.’”
[Objections at 2 (emphasis in original).]
The
magistrate judge found that Petitioner procedurally defaulted on
Grounds Two, Three, and Four and that he did not demonstrate that
the failure to consider the claims would result in a fundamental
miscarriage of justice.
[F&R at 21-23.]
This Court has examined the issue de novo and agrees
with the F&R on this point.
“[A] ‘petitioner must show that it
is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence.’”
Lee v.
Lampert, – F.3d – , No. 09–35276, 2011 WL 3275947, at *6 (9th
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Cir. Aug. 2, 2011) (quoting Schlup v. Delo, 513 U.S. 298, 327
(1995)).
Petitioner, however, has presented no new, reliable
evidence that creates a colorable claim of actual innocence.
Rather, the evidence noted in the Amended Petition was presented
at trial and rejected by the jury.
The Court therefore DENIES
Petitioner’s second objection to the F&R.
III. Petitioner’s Third Objection - Certificate of Appealability
Third, Petitioner objects to the denial of a
certificate of appealability.
He argues that he has made a
substantial showing of the denial of his constitutional rights,
including his Sixth Amendment right to counsel, the right to an
impartial judge and jury, and actual innocence.
4.]
[Objections at
The magistrate judge found that reasonable jurists would not
find the denial of Ground One was debatable or wrong, or that the
denial of Grounds Two, Three, and Four as procedurally barred was
debatable, and recommended that the certificate of appealability
be denied.
[F&R at 24-25.]
This Court has examined the issue de novo and agrees
with the F&R’s denial of the certificate of appealability.
A
certificate of appealability may issue only if the Petitioner has
“made a substantial showing of the denial of a constitutional
right.”
28 U.S.C. § 2253(c)(2).
Petitioner’s Objections fail to
substantiate his claims, and merely restate his legal conclusion
that his constitutional rights were violated.
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The Court finds
that reasonable jurists could not debate whether the Amended
Petition states a valid claim for the denial of a constitutional
right, or find it debatable whether the district court was
correct with respect to its procedural rulings.
See Ybarra v.
McDaniel, – F.3d – , No. 07–99019, 2011 WL 3890741, at *9 (9th
Cir. Sept. 6, 2011) (quoting Slack v. McDaniel, 529 U.S. 473,
484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000)).
The Court
therefore DENIES Petitioner’s third objection to the F&R.
IV.
Petitioner’s Motion
Rule 7 of the Rules Governing Section 2254 Cases
provides as follows:
(a) In General. If the petition is not dismissed,
the judge may direct the parties to expand the
record by submitting additional materials relating
to the petition. The judge may require that these
materials be authenticated.
(b) Types of Materials. The materials that may be
required include letters predating the filing of
the petition, documents, exhibits, and answers
under oath to written interrogatories propounded
by the judge. Affidavits also may be submitted
and considered as part of the record.
(c) Review by the Opposing Party. The judge must
give the party against whom the additional
materials are offered an opportunity to admit or
deny their correctness.
According to the Ninth Circuit, “the conditions of §
2254(e)(2) generally apply to Petitioners seeking relief based on
new evidence, even when they do not seek an evidentiary hearing.”
Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005)
(citing Holland v. Jackson, 542 U.S. 649, 652–53, 124 S. Ct.
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2736, 159 L. Ed. 2d 683 (2004)).
“An exception to this general
rule exists if a Petitioner exercised diligence in his efforts to
develop the factual basis of his claims in state court
proceedings.”
Id. at 1241 (citing Williams v. Taylor, 529 U.S.
420, 427, 120 S. Ct. 1479, 146 L. Ed. 2d 435 (2000)).
Section 2254(e)(2) provides:
If the applicant has failed to develop the factual
basis of a claim in State court proceedings, the
court shall not hold an evidentiary hearing unless
the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law,
made retroactive to cases on collateral
review by the Supreme Court, that was
previously unavailable; or
(ii) a factual predicate that could not
have been previously discovered through
the exercise of due diligence; and
(B) the facts underlying the claim would be
sufficient to establish by clear and
convincing evidence that but for
constitutional error, no reasonable
factfinder would have found the applicant
guilty of the underlying offense.
A petitioner seeking to expand the record or seeking an
evidentiary hearing must generally allege facts that, if proven,
would entitle him to relief.
(9th Cir. 1997).
Jones v. Wood, 114 F.3d 1002, 1010
Petitioner’s Motion fails to do so.
Here, Petitioner does not explain the basis for his
request to expand the record or how his request complies with §
2254(e)(2).
Petitioner does not address his failure to develop
the factual basis for his claims in state court proceedings, or
how he was not a fault for failing to develop such evidence.
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Nor
is their any showing of diligence.
See Cooper-Smith, 397 F.3d at
1241 (Diligence “depends upon whether petitioner made a
reasonable attempt, in light of the information available at the
time, to investigate and pursue claims in state court.”).
Petitioner does not explain why the evidence could not have been
discovered through the exercise of due diligence and presented to
the state courts in Petitioner’s criminal appeals and
post-conviction petitions.
Rather, Petitioner simply asks the
Court to consider additional evidence and pleadings from his
other proceedings.
The Court, therefore, finds that Petitioner
has not met the conditions of § 2254(e)(2), and the Motion is
DENIED.
Further, to the extent the requested documents are
already part of the record in this case, the Motion is DENIED AS
MOOT.
CONCLUSION
On the basis of the foregoing, the Court HEREBY DENIES
Petitioner’s Objections to Magistrate’s Findings and
Recommendations, filed August 11, 2011, and Motion to Order
Expansion of the Record, filed August 16, 2011.
The Court HEREBY
ADOPTS the magistrate judge’s Findings and Recommendation to Deny
(1) Amended Petition for Writ of Habeas Corpus and (2)
Certificate of Appealability, filed August 5, 2011.
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DATED AT HONOLULU, HAWAII, September 30, 2011.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
MICHAEL C. TIERNEY V. NOLAN P. ESPINDA; CIVIL NO. 11-00246 LEKRLP; ORDER DENYING PETITIONER’S MOTION TO ORDER EXPANSION F THE
RECORD AND DENYING PETITIONER’S OBJECTIONS TO THE MAGISTRATE
JUDGE’S FINDINGS AND RECOMMENDATION TO DENY (1) AMENDED PETITION
FOR WRIT OF HABEAS CORPUS AND (2) CERTIFICATE OF APPEALABILITY
AND ORDER ADOPTING THE FINDINGS AND RECOMMENDATION
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