Nakamoto v. Kay et al

Filing 10

ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 7 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 10/20/11. (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). Kenneth K. Nakamoto served by first class mail at the address of record on October 20, 2011. The Ninth Circuit Court of Appeals received the order through ECF.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
KENNETH K. NAKAMOTO,

)
)
Plaintiff,
)
)
vs.
)
)
ALAN C. KAY; PROBATION
)
OFFICER, U.S.; UNITED STATES )
OF AMERICA,
)
)
)
Defendants.
_____________________________ )

CIV. NO. 11-00455 SOM/KSC
CR. NO. 92-01199 ACK
ORDER DECLINING TO ISSUE
CERTIFICATE OF APPEALABILITY

ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
This court has received a memorandum from the Ninth
Circuit indicating that Kenneth Nakamoto's appeal to the Ninth
Circuit is stayed "pending the district court's determination on
the certificate of appealability."

Because this court was

uncertain whether Nakamoto's filing was indeed a motion under 28
U.S.C. § 2255, and because this court made no ruling on the
merits of Nakamoto's filing, this court did not earlier address
the issue of a certificate of appealability. This court is
uncertain whether the Ninth Circuit is now deeming Nakamoto's
filing to have been submitted under § 2255, a matter that may be
important to Nakamoto, as (absent a Ninth Circuit certification)
such a ruling might preclude him from being able to file a later
§ 2255 challenge to a revocation ruling entered on March 2, 2011,
even though the one-year statute of limitation has not yet run.
In any event, to address the Ninth Circuit's
memorandum, this court states that, if 28 U.S.C. §§ 2255 and 2253

are applicable to this case (a matter the district court did not
decide), then this court declines to issue a certificate of
appealability in connection with Nakamoto's appeal from the order
denying the motion he filed in the district court on July 19,
2011.
This court recognizes that an appeal may not be taken
to the court of appeals from a final order in a § 2255 proceeding
“[u]nless a circuit justice or judge issues a certificate of
appealability.”

28 U.S.C. § 2253(c)(1)(A).

The court shall

issue a certificate of appealability “only if the applicant has
made a substantial showing of the denial of a constitutional
right.”

28 U.S.C. § 2253(c)(2).

When a district court denies a

§ 2255 petition on the merits, a petitioner, to satisfy the
requirements of section 2253(c)(2), “must demonstrate that
reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.”
McDaniel, 529 U.S. 473, 484 (2000).
the merits of Nakamoto's motion.

Slack v.

This court made no ruling on

However, to the extent the

Ninth Circuit is deeming a certificate of appealability
necessary, this court states that reasonable jurists would not
find this court’s ruling denying Nakamoto's motion debatable or
wrong.
Nakamoto commenced the present action on July 19, 2011,
by filing a document with the title "Motion to Vacate Judgment of

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Civil Commitment under Rule 60(b) and 60(d)(3) Fed. R. Civ. P.
under The Entire U.S. Constitution and Under the United Nations
Treaty and United States Participation Act of 1945 [Never
Rescinded an [sic] Ratified into U.S. Law by Pres. Truman and
U.S. Senate-U.C.C."

The court noted that Nakamoto appeared to be

challenging rulings made in a criminal case in this district in
which he had been indicted for bank robbery.

Following a bench

trial in that criminal case, the late Judge Harold Fong
(erroneously identified in the court's earlier order as having
been Judge Alan C. Kay, who handled only later revocation
proceedings in Nakamoto's criminal case) found Nakamoto not
guilty by reason of insanity. Nakamoto was committed to the
custody of the Attorney General for hospitalization and treatment
at a suitable medical facility.

In the Fall of 1994, Judge Fong

ordered Nakamoto released subject to enumerated conditions.
Nakamoto had his release revoked several times, most recently on
February 23, 2011, as documented in an order entered by the
Honorable Alan C. Kay filed on March 2, 2011. In connection with
the 2011 revocation proceeding, Nakamoto, represented by counsel,
admitted to several violations of a conditional release
condition.

Judge Kay ordered Nakamoto returned to the Federal

Medical Center in Springfield, Missouri. Nakamoto took no appeal
from Judge Kay's order.

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Although Nakamoto's "Motion to Vacate Judgment of Civil
Commitment" referred to Judge Kay, it also referred to Judge
Kay’s purported actions during trial, making it unclear to the
present judge whether Nakamoto was challenging the original civil
commitment order. Adding to the lack of clarity in Nakamoto's
motion was his reference to Rule 60 of the Federal Rules of Civil
Procedure.

On July 28, 2011, this court issued its "Order

Seeking Clarification of July 19, 2011, Filing."

That order

asked Nakamoto to clarify the basis of his motion and to indicate
whether, notwithstanding his reference to Rule 60 of the Federal
Rules of Civil Procedure, he was seeking relief under 28 U.S.C.
§

2255.

Uncertain whether Nakamoto might be challenging the

original commitment ruling from the early 1990s, the court also
directed Nakamoto, if he was proceeding under § 2255, to address
why a § 2255 petition was not time-barred.

Because the court was

conscious that an incorrect determination by it that Nakamoto was
proceeding under § 2255 might unwittingly prejudice Nakamoto by
causing a court to dismiss as a successive and unauthorized
petition a later filing intended by him to be his first petition,
the court expressly stated in the order, "The court is willing to
construe that filing as a petition under § 2255, but only if
Nakamoto indicates that he desires this court to do so."

The

order gave Nakamoto a deadline of August 24, 2011, to clarify his
motion.

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On August 12, 2011, the court received from Nakamoto
what he called his "Exceptions and Response."

Instead of

indicating whether he wanted his motion deemed a request for
relief under § 2255, Nakamoto asserted, "All U.S. authorities and
all U.S. laws are null and void--nullified--invalid due to the
signing and ratifying (U.N. Treaty and U.N. Participation Act of
1945) into American Law . . . . . by the late U.S. President Mr.
Harry S Truman and U.S. Senate jointly in 1945--well kept top
secret--etc.!"

Nakamoto further stated that, "if necessary," he

would "duly appeal to the Ninth Circuit Court(s) and U.S. Supreme
Court of America and U.N. World Court and International Criminal
Court--both in at The Hague-Netherlands if this case goes any
farther."

He asked that the district court "traverse both the

United Nations Treaty and United Nations Participation Act of
1945."
On August 15, 2011, this court filed its "Order
Regarding August 12, 2011, Filing," stating that Nakamoto's
August 12 submittal was not responsive to the court's earlier
order seeking clarification and that Nakamoto still had until
August 24 to respond to the order seeking clarification.

The

court stated, "If no such response is submitted, the court may
deny the motion filed on July 19, 2011, without a hearing
pursuant to Local Rule 7.2(d)."

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On September 12, 2011, the court entered a minute order
denying Nakamoto's motion, as the court had received nothing from
Nakamoto that was responsive to the court's earlier ruling
seeking clarification with respect to the motion.

The minute

order did not include any ruling on whether Nakamoto was or was
not proceeding under § 2255 or whether Nakamoto's filing was or
was not timely.

Instead, the minute order reflected only

Nakamoto's failure to clarify his motion.
Because Nakamoto's motion was unintelligible, was
unclear as to what ruling Nakamoto was challenging and what
provision he was proceeding under, and did not detail what error
Nakamoto was asserting, no reasonable jurist could have made a
ruling on the merits of the motion without clarification by
Nakamoto.

Given the absence of clarification by Nakamoto, no

reasonable jurist would have granted the motion.

To the extent a

certificate of appealability may have been requested, it is
therefore denied.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 20, 2011.

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

Kenneth Nakamoto v. Alan C. Kay, et al.; Civ. No. 11-00455 SOM/KSC; Cr. No. 92-01199
ACK ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY

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