Tia v. Espinda
ORDER DISMISSING PETITION WITH PREJUDICE AND DENYING CERTIFICATE OF APPEALABILITY. Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 10/31/2012. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic noti fications 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
PETER R. TIA, #A1013142,
NO. 1:12-cv-00304 SOM/BMK
ORDER DISMISSING PETITION
WITH PREJUDICE AND DENYING
CERTIFICATE OF APPEALABILITY
ORDER DISMISSING PETITION WITH PREJUDICE
AND DENYING CERTIFICATE OF APPEALABILITY
Before the court is Peter R. Tia’s petition for writ of
habeas corpus under 28 U.S.C. § 2254 (“Petition”).
challenges his sentence in CR No. 07-01-1443.
See Pet., ECF #1.
Respondent has filed a Preliminary Answer and Supplemental Brief.
ECF #22, #33.
Tia has filed numerous documents in support of his
Petition and in response to the OSC, Preliminary Answer, and
Because Tia’s claims are unexhausted and procedurally
barred, the Petition is DISMISSED with prejudice pursuant to 28
U.S.C. § 2254(b).
A certificate of appealability is DENIED.
On May 22, 2008, a jury found Tia guilty of Promoting a
Dangerous Drug in the Second Degree in violation of Hawaii
Tia’s documents are difficult to comprehend and creatively
labeled. The court has endeavored to read and liberally construe
all of his “Notices,” letters, responses, and motions as part of
his arguments in support of the Petition when possible. See
e.g., ECF #9, #18, #21, #23, #25-#29, #34-36, #38.
Revised Statutes (“Haw. Rev. Stat.”) § 712-1242 (Count I) and
Promoting a Dangerous Drug in the Third Degree in violation of
Haw. Rev. Stat.
§ 712-1243 (Count II).
See App. B, ECF #22-3
PageID #16 (State v. Tia, No. 29752 (Haw. App. Jul. 29, 2010)
(summary disposition order)).
He was sentenced to ten years of
imprisonment for Count I and five years of imprisonment for Count
II, with a mandatory minimum sentence of three years and four
months as a repeat offender.
These sentences were to run
concurrently with each other and with Tia’s conviction in CR No.
On January 29, 2009, the Circuit Court of the First
Circuit (“circuit court”) entered an Amended Judgment of
Conviction and Sentence (“Amended Judgment”).
Tia’s court-appointed appellate counsel, Venetia
Carpenter-Asui, Esq., raised one issue on appeal: whether Tia had
been sufficiently identified as the person previously convicted
in CR. No. 96-0703, such that he could be sentenced as a repeat
ECF #22-5 PageID #178-185.
On July 29, 2010, the
Hawaii Intermediate Court of Appeals (“ICA”) affirmed Tia’s
sentence as a repeat offender, finding that Tia did not make a
good faith challenge to the presentence report, as required under
ECF #22-1, PageID #146.
to the Hawaii Supreme Court.2
Tia did not seek certiorari
Judgment on appeal was entered on
Review by the Hawaii Supreme Court is unnecessary to
exhaust habeas claims in Hawaii. See Haw. R. App. P. 40.3 (2009);
see also Swoopes v. Sublett, 196 F.3d 1008 (9th Cir. 1999).
August 19, 2010.3
ECF #22-7, PageID #225.
On or about December 28, 2010, Tia signed a pleading he
titled “Defendant’s Motion For Release On His Own Recognizance Or
Alternative,” and sent it to the state circuit court.
App. C., ECF #33-3 PageID #330-31.
It is unclear when Tia gave
this document to prison officials for mailing, but it was
received in the state circuit court on January 20, 2011.
about March 16, 2011, the state court designated this document as
a Nonconforming Rule 40 Petition pursuant to Hawaii Rules of
Penal Procedure (“Haw. R. Penal P.”) Rule 40(c)(2).
B., ECF #33-2 PageID #328.
In this pleading, Tia sought release
on his own recognizance or to a drug court program, alleging that
his minimum term had expired.
Tia vaguely argued that his “court
appointed counsels”4 had not “properly” informed him of his
rights, that he had served his minimum term, and that he had a
hearing scheduled before the Hawaii Paroling Authority in January
Resp.’s App. C, ECF #33-3 PageID #330-331.
The circuit court instructed Tia to submit an amended
Respondent originally asserted that Tia never filed a
post-conviction petition challenging his conviction in CR No. 071-1443. See Answer, ECF #22-1, PageID #149-50. Respondent now
concedes that Tia filed a nonconforming state petition for postconviction relief, but argues that the petition was not “properly
filed” within the meaning of § 2244(d)(2).
Tia was represented by Stuart N. Fujioka, Esq., at trial,
Michael Park, Esq., at sentencing, and Carpenter-Asui on appeal.
See Answer, ECF #22-1 PageID# 144.
petition on the court’s form, and to pay the filing fee or submit
an in forma pauperis application, on or before April 17, 2011, or
risk dismissal of the petition for failing to comply with state
Id. PageID #329; see also Haw. R. Penal P. 40(c)(2)(iOn April 4, 2011, Tia responded that the state circuit
judge was “in cahoots” with the Ninth Circuit Court of Appeals
and United States District Judge Helen Gillmor to deny his
Resp.’s App. D, ECF #33-4, PageID 336.
On April 5, 2011, the state circuit court sent Tia a
second letter, again explaining the deficiencies in his
Nonconforming Rule 40 Petition and notifying him that he had to
comply with Rule 40(c) on or before April 17, 2011.
#22-5, PageID #338-39.
After waiting more than a month and
receiving nothing further from Tia, the state circuit court
dismissed the Nonconforming Rule 40 Petition based on Tia’s
failure to comply with state rules and conform the pleading “with
the requirements of HRPP Rule 40, HRPP Rule 40(c), and HRPP ’s
appendix, including Form A and Form B.”
Resp.’s App. F, ECF #33-
6 PageID #349 (dated May 10, 2011).
Tia signed the present federal habeas petition on May
13, 2012, and the court received and filed it on May 16, 2012.
Tia raises four ineffective assistance of counsel claims against:
(1) appellate counsel Carpenter-Asui for failing (a) to move for
a reduction of sentence after the Hawaii Supreme Court vacated
his conviction in CR. No. 08-1-0985, for which he was serving a
concurrent sentence (Ground One), and (b) to raise other
undisclosed issues on appeal (Ground Four); (2) trial counsel
Fujioka, for failing to secure for Tia participation in a drug
rehabilitation program in lieu of incarceration (Ground Two); and
(3) sentencing counsel Park, for failing to object to the State’s
motion to sentence Tia as a repeat offender (Ground Three).
#1, Pet. at 3, 5, 7, & 9.
EXHAUSTION AND PROCEDURAL DEFAULT
A prisoner seeking federal habeas corpus relief must
exhaust his claims in the state courts prior to filing a petition
for a writ of habeas corpus in federal court.
§§ 2254(b) and (c); Baldwin v. Reese, 541 U.S. 27, 29 (2004);
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Coleman v.
Thompson, 501 U.S. 722, 731 (1991); Peterson v. Lampert, 319 F.3d
1153, 1155 (9th Cir. 2003) (en banc).
remedies doctrine . . . reflects a policy of federal-state
comity, an accommodation of our federal system designed to give
the State an initial opportunity to pass upon and correct alleged
violations of its prisoners’ federal rights.”
Picard v. Connor,
404 U.S. 270, 275 (1971) (internal quotation marks, citations and
footnote omitted); O’Sullivan, 528 U.S. at 844-45.
exhaustion doctrine is principally designed to protect the state
courts’ role in the enforcement of federal law and prevent
disruption of state judicial proceedings.”
Rose v. Lundy, 455
U.S. 509, 518 (1982).
To properly exhaust habeas claims, a petitioner must
“present the state courts with the same claim he urges upon the
Picard, 404 U .S. at 276.
To fully exhaust, a
petitioner must alert the state court “to the fact that the
prisoner [is] asserting claims under the United States
Constitution” and must give the state court an opportunity to
correct alleged violations of the petitioner’s federal rights.
Duncan v. Henry, 513 U.S. 364, 365 (1995); see Hiivala v. Wood,
195 F.3d 1098, 1106 (9th Cir. 1999).
Thus, a habeas petitioner must give the state courts
“one full opportunity” to decide a federal claim by carrying out
“one complete round” of the state’s appellate process in order to
properly exhaust a claim.
O’Sullivan, 526 U.S. at 845.
petitioner must present his claims to the highest state court
with jurisdiction to consider it or demonstrate that no state
remedy remains available.
See Johnson v. Zenon, 88 F.3d 828, 829
(9th Cir. 1996); Peterson, 319 F.3d at 1156 (petitioner must have
no state remedies available to him at the time he files his
federal habeas petition).
A habeas petitioner’s unexhausted claims may be
procedurally barred from federal review in two ways.
claim may be precluded if it was actually raised in state court
but rejected on state procedural grounds.
Coleman, 501 U.S. at
The procedural bar relied on by the state court must be
independent of federal law and adequate to warrant preclusion of
See Harris v. Reed, 489 U.S. 255, 262 (1989).
state procedural bar is not adequate unless it was firmly
established and regularly followed at the time of the purported
See Ford v. Georgia, 498 U.S. 411, 423–24 (1991).
Second, a claim may be procedurally defaulted if the
petitioner failed to present it in state court, or failed to
fairly present it as a federal claim, and “the court to which the
petitioner would be required to present his claims in order to
meet the exhaustion requirement would now find the claims
Coleman, 501 U.S. at 735 n.1; see also
Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998) (stating that
the district court must consider whether the claim could be
pursued by any presently available state remedy).
Because the doctrine of procedural default is based on
comity, not jurisdiction, federal courts retain the power to
consider the merits of procedurally defaulted claims.
Ross, 468 U.S. 1, 9 (1984).
As a general matter, this court does
not review the merits of a procedurally defaulted claim unless a
petitioner demonstrates legitimate cause for the failure to
properly exhaust the claim in state court and prejudice from the
alleged constitutional violation, or shows that a fundamental
miscarriage of justice would result if the claim were not heard
on the merits in federal court.
Coleman, 501 U.S. at 750.
Avenues for Exhaustion in Hawaii
In Hawaii, petitioners may exhaust their federal
constitutional claims on direct appeal and through petitions for
post-conviction relief brought pursuant to Haw. R. Penal P. 40.
Rule 40 provides that state prisoners are precluded, or
procedurally barred, from obtaining post-conviction relief on
issues they have “knowingly and understandingly” waived by
failing to raise the issues before trial, at trial, on appeal, or
by any other means, and there are no “extraordinary
circumstances” justifying the failure to raise the issue.
R. Penal P. 40(a)(3).
The Ninth Circuit has held that Rule 40(a)(3) is
consistently applied and an adequate and independent state
procedural rule sufficient to support procedural default.
Cockett v. Ray, 333 F.3d 938, 943 (9th Cir. 2003); see also
Elizares v. Parker, 2007 WL 2048832, at *2-3 (D. Haw. July 12,
2007) (adopting the Magistrate Judge’s finding that Rule 40(a)(3)
is an adequate and independent state procedural rule sufficient
to support a finding of procedural default), aff’d, 2009 WL
766506 (9th Cir. Mar. 24, 2009).
Thus, in Hawaii, if no remedies are currently available
pursuant to Rule 40, the claim is “technically” exhausted but
See Coleman, 501 U.S. at 732, 735 n.1;
see also Gray, 518 U.S. at 161–62; Robinson v. Schriro, 595 F.3d
1086, 1100 (9th Cir. 2010) (equating technical exhaustion with
implied procedural bar).
Tia’s claims in the present Petition are unexhausted,
procedurally defaulted, and not subject to exception to the
procedural bar doctrine.
Tia failed to fairly present his present claims
alleging ineffective assistance of each of his attorneys to the
On direct appeal, Tia raised one claim,
challenging his sentence as a repeat offender under state law.
Carpenter-Asui, his appellate attorney, could not raise an
ineffectiveness claim against herself, as Tia raises now, nor
could she move for a reduction in his sentence based on the
reversal of his conviction in CR. No. 08-1-0985, because that
conviction had not yet been overturned when Tia was on direct
Tia’s Nonconforming Rule 40 Petition was wholly based
on an alleged violation of state law and presented no federal
legal theory for his claims.
To the extent that it vaguely
suggested that his attorneys were ineffective for failing to
pursue alternative sentences, such as drug court, rehabilitation,
or outright release after his other conviction was reversed and
his minimum term allegedly expired, this putative claim is
unexhausted because the petition raised no federal claims or
legal theories and was dismissed for Tia’s failure to comply with
Haw. R. Penal P. 40(c)(2).5
Tia never appealed this ruling.
Hawaii’s appellate courts have therefore never ruled on Tia’s
ineffective assistance of counsel claims, and the present
Petition is completely unexhausted.
When a petitioner fails to exhaust his claims, the
federal court must determine if he has any available remaining
remedies in state court.
See Ortiz v. Stewart, 149 F.3d 923, 931
(9th Cir. 1998) (stating that the district court must consider
whether the claim could be pursued by any presently available
The court must assess the likelihood that a state
court will allow a determination on the merits of his claim in a
Tia neither paid the filing fee, sought in forma pauperis
status, nor submitted his Nonconforming Rule 40 Petition on court
forms as directed by the state circuit court and required under
Haw. R. Penal P. 40(c)(2)(i-iii). It further appears that his
petition was never “properly filed” under state law, although
this goes to whether it is time-barred rather than exhausted.
See Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that, to be
properly filed, a state petition must comply with state prefiling
conditions, including conditions relating to the form of the
petition, time limits, filing in the correct court, and
submission of the filing fee).
See Phillips v. Woodford, 267 F.3d 966,
974 (9th Cir. 2001).
Tia raised no claims under federal law on direct appeal
or in his Nonconforming Rule 40 Petition.
Nor did the ICA
address his claim on direct appeal pursuant to federal law.
Howell v. Mississippi, 543 U.S. 440, 443 (2005) (declining to
consider a habeas challenge that was neither presented to nor
addressed by the state supreme court as a federal issue).
To the extent Tia suggested ineffective assistance of
appellate counsel in his Nonconforming Rule 40 Petition, it was
dismissed as procedurally defaulted for his failure to pay or
conform that petition to state rules.
This court concludes that
if Tia returned to state court and attempted to raise the claims
herein as federal issues, the state court would dismiss them as
knowingly and intelligently waived or previously ruled upon under
Haw. R. Penal P. 40(a)(3).
Tia’s claims are therefore
procedurally defaulted because he no longer has an available
See Coleman, 501 U.S. at 732, 735 n.1; Smith v.
Baldwin, 510 F.3d 1127, 1138 (9th Cir. 2007) (en banc).
No Showing of Cause or Prejudice
When a state prisoner procedurally defaults his federal
claims in state court, federal habeas review is precluded unless
the prisoner can demonstrate cause for the procedural default and
actual prejudice, or demonstrate that the failure to consider the
claims will result in a fundamental miscarriage of justice.
Edwards v. Carpenter, 529 U.S. 446, 451 (2000); see also Murray
v. Carrier, 477 U.S. 478, 485 (1986); Noltie v. Peterson, 9 F.3d
802, 804-05 (9th Cir. 1993).
To demonstrate cause, the petitioner must show that
“some objective factor external to the defense impeded [his]
efforts to comply with the State’s procedural rule.”
U.S. at 488; McCleskey v. Zant, 499 U.S. 467, 493 (1991)
(examples include government interference or reasonable
unavailability of factual basis for claim).
prejudice, the petitioner “bears the burden of showing not merely
that the errors at his trial constituted a possibility of
prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with errors of
(9th Cir. 1989).
White v. Lewis, 874 F.2d 599, 603
See United States v. Frady, 456 U.S. 152, 170
If the petitioner fails to demonstrate cause, however,
the federal court need not consider the issue of prejudice.
Thomas v. Lewis, 945 F.2d 1119, 1123 n.10 (9th Cir. 1991).
Tia fails to demonstrate cause for his failure to
fairly present his federal claims to the state court on direct
review or in his Nonconforming Rule 40 Petition.
rebuts Respondent’s argument that his claims are procedurally
defaulted, nor sets forth any argument that some objective factor
external to the defense impeded his efforts to fairly present his
claims as federal issues.
Tia was represented by counsel on
direct appeal, and provides correspondence showing that there was
detailed communication between Carpenter-Asui and himself during
See Pet’r Notice, Exh. A, ECF #23-1 PageID #231;
Mot., Exh. A, ECF #26-1 PageID #292.
Carpenter-Asui could have
raised ineffective assistance of counsel claims against Park and
Fujioka, but it is clear that she studied his case and chose to
concentrate on the one claim that she raised.
See Notice, Exh.
A, ECF #23-1 PageID #231 (stating she agreed with Park’s
assessment as to appealable issues and disagreed with Fujioka,
and informing Tia of his options).
Moreover, Tia cannot use Carpenter-Asui’s failure to
raise any federal claims as cause to excuse his default, because
he never raised a separate and exhausted claim of ineffective
assistance of appellate counsel in the state court.
See Cook v.
Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008) (holding that
ineffective assistance of counsel may constitute sufficient cause
to excuse a default, “only if the procedural default was a result
of an independent constitutional violation”).
Tia was also given every opportunity to conform his
Nonconforming Rule 40 Petition to state court rules before it was
Rather than doing so, and at that time clarifying his
vague claims, Tia chose to ignore the state court’s instructions,
blame his problems on a conspiracy between the federal and state
courts, and decline to pay or file an amended petition.
not meet his burden by demonstrating cause to excuse the
procedural default of these counts and the court need not reach
the issue of actual prejudice.
See Smith v. Murray, 477 U.S.
528, 533 (1986).
No Fundamental Miscarriage of Justice
A petitioner may overcome a procedural bar if he can
demonstrate “that failure to consider the claims will result in a
fundamental miscarriage of justice.”
333, 339 (1992).
Sawyer v. Whitley, 505 U.S.
The “miscarriage of justice” exception is
limited to habeas petitioners who can show that “a constitutional
violation has probably resulted in the conviction of one who is
Schlup v. Delo, 513 U.S. 298, 327 (1995);
Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. Aug. 2, 2011)
(holding that the actual innocence exception applies to timebarred claims).
The required evidence must create a colorable
claim of actual innocence, that is, that the petitioner is
innocent of the charge for which he is incarcerated, as opposed
to legal innocence as a result of legal error.
Schlup, 513 U.S.
A successful claim of actual innocence, “requires a
petitioner to support his allegations . . . with new reliable
evidence” that was not and could not have been presented at trial
to show that “it is more likely than not that no reasonable juror
would have found petitioner guilty beyond a reasonable doubt.”
Id. at 327; see also, Lee, 653 F.3d at 937.
Tia does not assert that he is actually innocent,
provide newly discovered evidence that would support such a
claim, or make any other showing of actual innocence.
confines himself to arguing that he is entitled to be released
because he has served his minimum term and his second conviction
has been vacated.
Tia, however, concedes that he was
appropriately sentenced as a repeat offender based on his 1996
Moreover, there is no miscarriage of justice here,
because, contrary to what he is essentially claiming, Tia has no
right to release before his full term expires.
See Swarthout v.
Cooke, ––– U.S. ––––, 131 S. Ct. 859, 862 (2011) (per curiam)
(“There is no right under the Federal Constitution to be
conditionally released before the expiration of a valid sentence,
and the States are under no duty to offer parole to their
prisoners.”); see also Greenholtz v. Nebraska, 442 U.S. 1, 7
Tia fails to show that he is entitled to review of his
procedurally defaulted claims based on cause, prejudice, or
Tia concedes that he was “2 months inside the window of
his [conviction in] No. 96-0703,” admitting that, when sentenced,
he qualified as a repeat offender under Haw. Rev. Stat. § 706606.5. Pet., ECF #1 at 5 (”).
His Petition is therefore unexhausted and
procedurally barred from federal review.
Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2254 Cases
requires a district court to rule on whether a petitioner is
entitled to a certificate of appealability in the same order in
which the petition is decided.
Tia cannot make a substantial
showing that this court’s procedural ruling is incorrect and that
he has been denied a constitutional right.
court declines to issue a certificate of appealability under 28
U.S.C. § 2253(c)(2) and Fed. R. App. P. 22(b).
McDaniel, 529 U.S. 473, 483 (2000); Cooper v. Calderon, 308 F.3d
1020, 1021-22, n.2 (9th Cir. 2002).
Tia’s petition for writ of habeas corpus brought
pursuant to 28 U.S.C. § 2254 is DISMISSED with prejudice as
unexhausted and procedurally barred.
of appealability is DENIED.
Any request for certificate
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 31, 2012.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Tia v. Espinda, Civ. No. 1:12-cv-00304 SOM, ORDER DISMISSING PETITION WITH PREJUDICE AND DENYING
CERTIFICATE OF APPEALABILITY; G:\docs\prose attys\Habeas\DMP\2012\Exh. & Proc. bar\Tia 12-304\Tia
12cv304 SOM (#2 unexh. & proc. barr'd).wpd
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