Tierney v. Abercrombie

Filing 90

ORDER DENYING PETITIONER'S RULE 60(B) MOTIONS 57 , 67 AND MOTION FOR BAIL OR RELEASE 89 . Signed by JUDGE LESLIE E. KOBAYASHI on 5/9/2012. 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.
)
_____________________________ )

CIV. NO. 11-00246 LEK-RLP
ORDER DENYING PETITIONER’S
RULE 60(b) MOTIONS AND MOTION
FOR BAIL OR RELEASE

ORDER DENYING PETITIONER’S RULE 60(b) MOTIONS
AND MOTION FOR BAIL OR RELEASE
On April 11, 2012, the Ninth Circuit Court of Appeals
vacated and remanded this Court’s orders declining to address
Petitioner’s Federal Rule of Civil Procedure 60(b) motions for
reconsideration.
Motion”).

See ECF #57 (“First Motion”),#67 (“Second

On May 3, 2012, the appellate court’s mandate issued

and this case was reopened.

ECF #87.

Accordingly, the Court now

considers Petitioner’s motions for reconsideration of the
September 30, 2011, Order adopting the Findings and
Recommendation (“F&R”) to deny the Amended Petition, denying the
motion to expand the record, and denying a certificate of
appealability (“COA”).

See ECF #42 (“September 30 Order”).

After careful consideration of Petitioner’s Motions, the entire
record, and the relevant legal authority, the Court DENIES
Petitioner’s Rule 60(b) Motions for the reasons set forth below.1
1

These matters are suitable for disposition without a
hearing pursuant to Rules LR7.2(d) and LR99.16.2(a) of the Local
(continued...)

I.

BACKGROUND2

Petitioner was convicted on October 27, 2009, in CR.
No. 08-1-0869, in the Circuit Court of the First Circuit
(“circuit court”), State of Hawai‘i, for Theft and Burglary, both
in the Second Degree.

ECF #24, Answer at 1.

Petitioner was

represented by Deputy Public Defender Edward Harada at his
arraignment and plea.

Id. at 1-2.

After entering a plea of not

guilty, Harada moved to withdraw as counsel.

The circuit court

granted the motion, finding a conflict of interest between
Petitioner and the Office of the Public Defender.

Id. at 2.

Petitioner later alleged that 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.

During

pretrial proceedings, Petitioner waived the right to counsel, and
the circuit court granted his request to proceed pro se.
circuit court retained Indiola as standby counsel.

The

Id.

After trial, the circuit court allowed Indiola to
withdraw and appointed Walter Rodby, Esq., as appellate counsel.
ECF #24-22, Appx. R to Answer.

Petitioner timely appealed,

1

(...continued)
Rules of Practice of the United States District Court for the
District of Hawai`i (“Local Rules”).
2

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 Petitioner’s Rule 60(b) Motions.
2

arguing that the evidence was insufficient to convict him and
that his rights to counsel and a fair and impartial judge and
jury were violated.

ECF #24-32, Appx. AA to Answer.

On

December 29, 2010, the Hawai‘i Intermediate Court of Appeals
(“ICA”) affirmed the conviction by summary disposition order and
judgment on appeal entered on January 27, 2011.
59, Appx. to Answer.

ECF #24-35 at

The Hawai‘i Supreme Court rejected

Petitioner’s January 22, 2011, application for a writ of
certiorari on March 7, 2011.

See id. at 69.

On March 16, 2011,

Petitioner filed a motion under Hawai`i Rules of Civil Procedure
60(b), for relief from judgment, that the Hawai`i Supreme Court
rejected on March 18, 2011.

See id. at 70.

While his direct appeal was pending, Petitioner filed a
petition for writ of mandamus directed at his appellate attorney,
Rodby.3

See Tierney v. Rodby, No. SCPW-11-0000109, 2011 WL

1090303, unpub. (Haw. Mar. 10, 2011).

The Hawaii Supreme Court

rejected Petitioner’s request, stating that “it appears that
mandamus does not lie against petitioner’s court-appointed
counsel[,]” and dismissed the mandamus petition for lack of

3

The Court “may take notice of proceedings in other courts,
both within and without the federal judicial system, if those
proceedings have a direct relation to matters at issue.” United
States ex rel. Robinson Rancheria Citizens Council v. Borneo,
Inc., 971 F.2d 244, 248 (9th Cir. 1992). A court may also take
judicial notice of the existence of matters of public record,
such as a prior order or decision, but not the truth of the facts
cited therein. See Lee v. City of Los Angeles, 250 F.3d 668,
689-690 (9th Cir. 2001).
3

jurisdiction on March 10, 2011.

Id.

Petitioner submitted a copy

of the Hawai`i Supreme Court’s March 24, 2011, order rejecting
his motion for reconsideration of this decision, to support his
claim that he raised and exhausted his ineffective assistance of
appellate counsel (“IAC”) claims before the state court.

See ECF

#41-4, Pet’r Reply to State’s Response, Appx. 4.
On May 15, 2011, Petitioner filed his amended petition
for writ of habeas corpus under 28 U.S.C. § 2254 (“Amended
Petition”).

ECF #14.

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.
On August 5, 2011, the magistrate judge found and
recommended that the Amended Petition and COA be denied.
#33, F&R.

ECF

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 unsupported
by any evidence and 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 these claims,
and they were procedurally barred.

4

F&R at 18-19, 23.

The

magistrate judge recommended denying a COA, finding 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.

Id. at 24-25.

On August 11, 2011, Petitioner filed objections to the
F&R.

ECF #35.

record.

On August 16, 2011, he moved to expand the

ECF #37.

After de novo review of the entire record and

consideration of the relevant case law, this Court denied
Petitioner’s motion to expand the record and adopted the F&R over
Petitioner’s objections, including the recommendation to deny the
COA.

ECF #42, September 30 Order.
On October 13, 2011, Petitioner appealed.

ECF #52.

On

October 18, 2011, Petitioner moved for reconsideration of the
September 30 Order.

ECF #57.

The Court denied the motion for

reconsideration, mistakenly believing it was divested of
jurisdiction.

See ECF #58.

On January 25, 2012, Petitioner

filed a second motion for reconsideration of the September 30,
2012 Order and other matters, ECF #67,4 and the Court again
declined to consider it while his appeal was pending, ECF #68.
After remand of his Rule 60(b) Motions, Petitioner
moved for release on bail pending their disposition.

4

ECF #89.

Petitioner also seeks reconsideration of the denials
appointment of counsel and evidentiary hearings. See ECF #4, #8,
#13, #23, #39, #48.
5

II.

LEGAL STANDARD

Petitioner moves for relief under Fed. R. Civ. P.
60(b).

Rule 60(b) provides:

Grounds for Relief from a Final Judgment, Order, or
Proceeding. On motion and just terms, the court may
relieve a party or its legal representative from a
final judgment, order, or proceeding 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);
(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.
F.2d 437, 441 (D.C. Cir. 1987).

Combs v. Nick Garin Trucking, 825
To succeed in a motion to

reconsider, a party 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

6

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.

PETITIONER’S MOTIONS

Petitioner’s Rule 60(b) Motions are difficult to
comprehend.

See generally, ECF #57 (“First Motion”), #67

(“Second Motion”).

In both Motions, however, he alleges that

mistake, neglect, fraud, or new evidence justify reconsideration
of the September 30 Order denying his Amended Petition for habeas
relief and COA.
In his First Motion, Petitioner argues that: (1) the
Court erred by denying the COA without holding a separate
proceeding; (2) the State failed to disclose his exhausted IAC
claims against Rodby, which would have excused his procedural
default; (3) the Court erred by denying his motion for an
evidentiary hearing on the issue of Harada’s alleged threats to
kill him; (4) he is actually innocent; (5) the Court failed to
conduct a de novo review of his Objections when it refused to
consider his Reply to the State’s Response to his Objections; (6)
the Court erred by denying him assistance of counsel.

See ECF

#57, First Motion.
Petitioner generally reiterates these claims in his
Second Motion, and further alleges that: (1) dismissal of a
habeas petition on procedural grounds does not bar issuance of a

7

COA; (2) the Court erred by considering his First Motion as a
second or successive habeas petition; and (3) the Court denied
him access to the courts in violation of the First Amendment, by
refusing to consider his Objections de novo, and grant him an
evidentiary hearing on his claims.
IV.

See ECF #67.

DISCUSSION

Petitioner raised substantially similar claims in his
Amended Petition, and Objections to the Findings and
Recommendation, as he raises in his Rule 60 motions.
A.

Claims Re: Certificate of Appealability
Petitioner’s claims regarding the denial of the COA are

rejected.

First, it is the preferred and common practice within

the Ninth Circuit for the district court to grant or deny a COA
within the order denying the petition for writ of habeas corpus.
There is no requirement that a district court hold a separate
proceeding to consider the merits of a petitioner’s request for
COA.

Just as a court will construe a petitioner’s notice of

appeal as a request for a COA, see United States v. Asrar, 116
F.3d 1268, 1270 (9th Cir. 1997), the court may address the
requirement for a COA within the order denying the petition.
Doing so effectuates Congress’ intent “to eliminate delays in the
federal habeas review process,” when it enacted the AntiTerrorism and Effective Death Penalty Act (“AEDPA”).

See Holland

v. Florida, 560 U.S. ––––, ––––, 130 S. Ct. 2549, 2562 (2010).

8

Petitioner submits no case law to the contrary.
Second, although Petitioner is correct that the denial
of a habeas petition on procedural grounds (or otherwise) does
not require the automatic denial of a COA, that is not what
occurred in this case.

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 denial
of the COA.

See ECF #14, F&R at 24-25.

After a careful, de novo

examination of the issue, this Court agreed and denied the COA.
See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Had Petitioner

presented issues that reasonable jurists would find debatable,
the COA would have been granted.
Third, the Court did not construe Petitioner’s 60(b)
Motions as second or successive habeas petitions and deny them on
that basis.

As explained, the Court mistakenly believed its

jurisdiction was divested by Petitioner’s many notices of appeal.
That error has been corrected by appellate remand and this Order.
Finally, the Court did not deny Petitioner access to
the courts by denying the COA within the September 13 Order.

The

Court carefully considered and adjudicated Petitioner’s petition
and motions.

Petitioner may now seek a COA directly from the

Court of Appeals of the Ninth Circuit.
Fed. R. App. P. 22(b).

See 28 U.S.C. § 2253(c);

Petitioner fails to identify any lost

9

litigating opportunity caused by the Court’s decision, or set
forth new facts or law convincing this Court to reconsider and
reverse its decision to deny the COA.
B.

Claims Re: Failure to Disclose or Take Notice of
Petitioner’s Allegedly Exhausted IAC Claims
Petitioner vaguely claims fraud based on the State’s

alleged “fail[ure] to disclose petitioner’s separate and
exhausted claim of ineffective assistance of counsel in state
court.”

ECF #57 at 2-3.

He also claims the Court erred by

denying his motion to expand the record to include this
information.

Petitioner argues that, had this information been

before the court, his appellate counsel’s alleged ineffectiveness
constituted cause to excuse his procedural default.

See

generally, ECF #57, First Motion.
First, to demonstrate cause for a procedural default, a
petitioner must be able to “show that some objective factor
external to the defense impeded” his efforts to comply with the
state procedural rule.
(1986).

Murray v. Carrier, 477 U.S. 478, 488

Ineffective assistance of counsel may satisfy the cause

requirement to overcome a procedural default only if the
independent IAC claim, itself, has been exhausted in state court.
Id. at 488-89.

Ineffective assistance of counsel cannot serve as

cause if the IAC claim has been procedurally defaulted.
v. Carpenter, 529 U.S. 446, 451-53 (2000).

10

Edwards

First, Petitioner provides no evidence showing that he
effectively exhausted his IAC claims against Rodby before filing
his Petition, before the magistrate judge issued the F&R, or
before this Court adopted the F&R.

To the contrary, both the

record and publicly available records demonstrate that he did
not.

Petitioner sought expansion of the record to include the

Hawai`i Supreme Court’s orders denying certiorari in the mandamus
proceeding that he instituted against Rodby, to show that he had
effectively exhausted his claims against Rodby.

See ECF #37,

Motion to Order Expansion of the Record (to include “1/18/2011,
3/7/11” denials).

When Petitioner sought mandamus, however,

Rodby was still representing Petitioner on direct appeal, and the
Hawai`i Supreme Court rejected the petition for lack of
jurisdiction.

See Tierney v. Rodby, 2011 WL 1090303, *1.

Thus,

Petitioner’s petition for mandamus against Rodby was explicitly
procedurally barred by the Hawai`i Supreme Court.

As such, this

claim was not properly exhausted under 28 U.S.C. § 2254(b)(1).
Nor did this course of action properly exhaust Petitioner’s IAC
claims against Rodby under Haw. R. Penal P. 40, which requires
such motions to be made “[a]t any time but not prior to final
judgment[.]”

Haw. R. Penal. P. 40(a)(1).

And finally, the documents that Petitioner wants made
part of the record, and alleges were fraudulently withheld by the
State, or mistakenly denied by the Court, were already part of

11

the record when this Court issued the September 30 Order.

See

Answer, ECF 24-35 at 59 (Jan. 27, 2011 denial of cert.), 69
(Mar. 7, 2011 denial of cert.), 70 (Mar. 18, 2011 denial of
cert.); ECF 41-4 (Mar. 24, 2011, denial of reconsideration of
Mar. 10, 2011 denial of cert.).

These documents do not show that

the State committed fraud, or the court mistakenly failed to
credit Petitioner’s claim that he exhausted an IAC claim against
his appellate counsel so as to excuse his procedural default.
C.

Claim Re: Actual Innocence
Petitioner claims his actual innocence excuses his

procedural default.

ECF #57 at 4.

Petitioner made this claim

before the magistrate judge, who carefully considered and
rejected it in the F&R.

See ECF #33, F&R at 22-23.

Petitioner

provides nothing to convince this Court that this determination
was incorrect.
A claim of actual innocence in support of the
fundamental miscarriage of justice exception to the procedural
default rule requires a petitioner “to support his allegations of
constitutional error with new reliable evidence - whether it be
exculpatory scientific evidence, trustworthy eye-witness
accounts, or critical physical evidence - that was not presented
at trial.”

Schlup v. Delo, 513 U.S. 298, 324 (1995); Cook v.

Schriro, 538 F.3d 1000, 1029 (9th Cir. 2008).

Petitioner

presented no such evidence to the magistrate judge, to this Court

12

with his Objection to the F&R, or in either of his Rule 60(b)
Motions.
D.

This claim is again rejected.

Claims Re: The Court’s Failure to Conduct a De Novo Review
Petitioner alleges that the Court failed to conduct a

de novo review of the issues raised in his Objections to the F&R,
when it refused to consider his Reply to Respondent’s Response to
his Objections.

See ECF #41 (Pet’r Response); ECF #42,

September 13 Order at 1-2 n.1.
Petitioner has no right to file a Reply to Respondent’s
Response to his Objections to the F&R.

See Local Rules of

Practice for the District of Hawaii, LR74.2.

This Court

expressly informed the parties that further briefing would not be
allowed absent prior leave of court.

See ECF #38.

Petitioner

did not seek such leave before filing his Reply.
Moreover, the Court did review Petitioner’s Reply, and,
realizing that it simply reiterated arguments and claims made
numerous times throughout these proceedings and in the
Objections, it declined to consider the Response.
September 30 Order at 2 n.1.

See ECF #42,

This argument provides no basis to

reconsider the September 30 Order.
E.

Remaining Claims Re: Court Error
Petitioner argues that the Court erred, denied him

access to the courts, and obstructed justice by denying him
counsel and an evidentiary hearing regarding his claim that

13

Harada threatened to kill him during his arraignment and plea.
First, the record clearly supports the magistrate’s
conclusion that no evidentiary hearing was required to determine
Petitioner’s claim that Harada threatened him.

See F&R at 15-16.

This Court’s independent review of the transcripts of
Petitioner’s arraignment and plea bear this out.

See Tr.

6/16/2008, ECF No. 24-4, 1-9; 8/5/2008, ECF No. 24-6 at 2.
Petitioner’s claim against Harada is conclusory and unsupported
by the record, and he provides no new facts or law to convince
the Court to revisit this determination.

Petitioner is not

entitled to an evidentiary hearing on this claims because it does
not rely on a new, retroactive rule of constitutional law, its
factual predicate was known at trial and determined by the state
court, and it fails to establish by clear and convincing evidence
that no reasonable fact finder would have found Petitioner guilty
of his underlying offenses.

See 28 U.S.C. § 2254(e)(2).

Second, Petitioner has no right to appointed counsel in
habeas actions if no evidentiary hearing is required.

See

McCleskey v. Zant, 499 U.S. 467, 495 (1991); Rule 8(c), 28 U.S.C.
foll. § 2254.

As discussed, an evidentiary hearing was not

required here.

It is within the court’s decision to deny

appointment of counsel, particularly when the interests of
justice are not served by such appointment.
Look, 718 F.2d 952, 954 (9th Cir. 1983).

14

See Weygandt v.

Petitioner fails to

provide anything persuading the Court that these decisions were
made in error.

Petitioner was not denied access to the courts

based on these decisions to deny him counsel and an evidentiary
hearing.
IV.

CONCLUSION

Petitioner’s Rule 60 motions are not based on a new,
retroactive rule of constitutional law, or facts that are not
already part of the record.

He does not establish by clear and

convincing evidence that, but for his claimed errors, no
reasonable fact finder would have found him guilty of theft and
burglary, his underlying offenses.

The court carefully

considered the merits of Petitioner’s claims in the F&R and in
the September 13 Order denying his Objections to the F&R.

The

record is clearly sufficient to determine Petitioner’s Rule 60
motions.

Moreover, Petitioner claims, even if established at a

hearing, would not entitle him to federal habeas relief for the
reasons set forth in the August 5, 2011, Findings and
Recommendation.

As such, Petitioner’s Rule 60(b) Motions, ECF

#57 and #67, are DENIED.

Petitioner’s Motion for Bail or Release

is DENIED as moot.
IT IS SO ORDERED.

15

DATED: Honolulu, Hawaii, May 9, 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 RULE
60(b) MOTIONS AND MOTION FOR BAIL OR RELEASE; psas\habeas\DMP\2012\Tierney 11-246 lek
(dny Rule 60(b) motions)

16