Lii v. State of Hawaii

Filing 9

ORDER Dismissing Petition As Time-Barred. Signed by JUDGE J. MICHAEL SEABRIGHT on 1/11/13. (gls, )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
HENRY KAPONONUIAHOPILI )
LII, FED. ID #6437-022,
)
)
Petitioner,
)
)
vs.
)
)
STATE OF HAWAII,
)
)
Respondent.
)
__________________________ )

CIV. NO. 12-00643 JMS-BMK
ORDER DISMISSING PETITION AS
TIME-BARRED

ORDER DISMISSING PETITION AS TIME-BARRED
Before the court is pro se Petitioner Henry Kapononuiahopili Lii’s
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner
challenges his conviction and sentence in the Circuit Court of the First Circuit,
State of Hawaii (“circuit court”), CR No. 88-0826. On December 5, 2012, the
court dismissed the Petition with leave to amend for Petitioner’s failure to name a
proper Respondent. The court also ordered Petitioner to show cause on or before
January 2, 2013, why the Petition should not be dismissed as time-barred.
Petitioner has filed an Amended Petition and responded to the Order to Show
Cause. ECF Nos. 7-8. For the following reasons, the Petition is DISMISSED with
prejudice as time-barred. Any request for certificate of appealability is DENIED.

I. THE WARDEN IS SUBSTITUTED AS RESPONDENT
Petitioner argues that his Petition is “a Hawaii rule 40, now filing to
Federal court, on 28 USC 2254,” and that, therefore, the State of Hawaii is the
correct Respondent. A petitioner seeking a writ of habeas corpus under § 2254, as
Petitioner concedes is his intent, must name the state officer having custody of him
or her as the respondent to the petition. See Rule 2(a) of the Rules Governing
§ 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley
v. Cal. Sup. Ct., 21 F.3d 359, 360 (9th Cir. 1994). Petitioner is confined at the
United States Penitentiary in Atwater, California, whose current warden is Paul
Copenhaver. The court sua sponte substitutes Warden Copenhaver as Respondent
to this suit.
II. BACKGROUND
On or about September 13, 1988, Petitioner pled guilty to Promoting
a Dangerous Drug in the Second Degree in CR No. 88-0826. See Pet., ECF #1,
Mem. in Support, ECF #3; see also http://hoohiki1.courts.state.hi.us/jud/Hoohiki/.
Petitioner was granted a deferred acceptance of guilty plea (“DAG plea”) and
Judgment entered on or about February 16, 1989. Petitioner did not directly
appeal his conviction. See id. Approximately five years later, on or about
February 23, 1994, Petitioner’s DAG plea was revoked in CR No. 88-0826, and

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he was resentenced to ten years imprisonment with credit for time served, to run
concurrently with his sentences in CR Nos. 88-2308, 92-3025, and 93-3058.
Petitioner did not appeal.
Approximately sixteen years later, on February 9, 2010, Petitioner
filed a “Motion to Supplement Before Judgment,” in the state circuit court, which
was designated as a non-conforming petition for post-conviction relief pursuant to
Hawaii Rules of Penal Procedure (“HRPP”) Rule 40, 1PR10-1-00010. On
December 23, 2010, the circuit court denied the Rule 40 petition without a hearing.
On January 26, 2012, the Hawaii Intermediate Court of Appeals (“ICA”) affirmed.
See Lii v. State, 2012 WL 255670 (Haw. App. Jan. 26, 2012). On June 12, 2012,
the Hawaii Supreme Court rejected Petitioner’s application for writ of certiorari.
Id., 2012 WL 2161154 (Haw. Jun. 12, 2012).
Petitioner is currently serving a term of life imprisonment at the
United States Penitentiary (“USP”) in Atwater, California, for his February 12,
2007, judgment of conviction in United States v. Lii, No. 1:06-cr-00143 JMS.
Because this Petition is obviously untimely on its face, on December
5, 2012, the court sua sponte raised the statute of limitations issue. See Day v.
McDonough, 547 U.S. 198, 210 (2006) (holding that district courts are permitted,
but not obliged, to consider, sua sponte, the timeliness of a state prisoner’s habeas

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petition). Before dismissing the Petition as time-barred, however, this court
provided Petitioner with notice and an opportunity to respond. See Herbst v. Cook,
260 F.3d 1039, 1043 (9th Cir. 2001). Petitioner has responded.
III. LEGAL STANDARD
Petitioner’s claims are governed by the statute of limitations set forth
in 28 U.S.C. § 2244(d)(1), which provides:
a one year period of limitation on applications for writ of
habeas corpus by persons in custody pursuant to state
court judgments. The limitation period runs from the
latest of(A)

the date on which the judgment became final
by the conclusion of direct review or the
expiration of the time for seeking such
review;

(B)

the date on which the impediment to filing
an application created by State action in
violation of the Constitution or laws of the
United States is removed, if the applicant
was prevented from filing such by State
action;

(C)

the date on which the constitutional right
asserted was initially recognized by the
Supreme Court, if the right has been newly
recognized by the Supreme Court and made
retroactively applicable to cases on
collateral review; or

(D)

the date on which the factual predicate of the
claim or claims presented could have been
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discovered through the exercise of due
diligence.
Thus, under the statute, a one-year limitation period applies to
applications for writs of habeas corpus, subject to certain tolling conditions. See
28 U.S.C. § 2244(d)(2); Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (limiting
statutory tolling under 2244(d)(2) to state, not federal petitions); Corjasso v. Ayers,
278 F.3d 874, 877-79 (9th Cir. 2002) (holding that, on a showing of extraordinary
circumstances, equitable tolling may apply to part or all of a petition); Nino v.
Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999).
IV. DISCUSSION
Petitioner’s conviction was final for purposes of § 2254(d)(1)(A), at
the very latest, thirty days after the time to appeal his February 23, 1994,
revocation of probation and resentencing expired, or on or about March 25, 1994.
See Smith v. Duncan, 297 F.3d 809, 812-13 (9th Cir. 2002) (holding that, if a
petitioner could have sought review by the highest state court but did not, his
conviction becomes final when the time for seeking such review elapses); see also
Haw. R. App. P. 4(b). Accordingly, absent some basis for tolling or an alternative
start date to the limitations period under§ 2244(d)(1), the statute of limitations
expired on or about March 25, 1995, and the Petition is time-barred.

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A.

28 U.S.C. § 2244(d)(1)(C)
Petitioner first argues that his Petition is timely under

§ 2244(d)(1)(C), because he is asserting a right newly recognized by the Supreme
Court in Missouri v. Frye, ––– U.S. ––––, 132 S. Ct. 1399 (2012), and Lafler v.
Cooper, ––– U.S. ––––, 132 S. Ct. 1376 (2012), and made retroactively available
on collateral review. Petitioner asserts that his state defense counsel was deficient
for failing to communicate and properly advise him during his plea agreement.
The Ninth Circuit Court of Appeals, however, has concluded that Frye
and Lafler did not announce a new rule of law made retroactively applicable to
cases on collateral review.
The Supreme Court in both cases merely applied the
Sixth Amendment right to effective assistance of counsel
according to the test articulated in Strickland v.
Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L.
Ed.2d 674 (1984), and established in the plea-bargaining
context in Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366,
88 L. Ed.2d 203 (1985). Because the Court in Frye and
Lafler repeatedly noted its application of an established
rule to the underlying facts, these cases did not break new
ground or impose a new obligation on the State or
Federal Government.
Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir. 2012) (internal citations
omitted); see also In re King, 697 F.3d 1189, 1189 (5th Cir. 2012) (denying the
filing of a second or successive § 2254 petition, holding that “Frye did not
announce [a] new rule[] of constitutional law because [it] merely applied the Sixth
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Amendment right to counsel to a specific factual context”); In re Perez, 682 F.3d
930, 933-34 (11th Cir. 2012) (same, as applied to § 2255 motion). Therefore, the
right Petitioner now wishes to assert was not “initially recognized by the Supreme
Court,” as required under § 2254(d)(1)(C).1
B.

28 U.S.C. § 2244(d)(1)(B)
Petitioner apparently argues that his attorney’s alleged ineffectiveness

constituted a state-created impediment to filing this Petition. But an attorney’s
alleged ineffectiveness is not a state-created impediment as contemplated by
§ 2244(d)(1)(B).” See, e.g., Lawrence v. Florida, 421 F.3d 1221, 1226 (11th Cir.
2005); Bell v. Fakhoury, 2011 WL 3809889, at *3 (C.D. Cal. May 4, 2011) (finding
appellate counsel not acting on behalf of the state for purposes of § 2244(d)(1)(B));
Lopez v. On Habeas Corpus, 2010 WL 2991689, at *4 (E.D. Cal. July 29, 2010)
(stating that even a state-appointed attorney cannot create an “impediment” “by
State action” within the meaning of § 2244(d) (1)(B)); Leyva v. Yates, 2010 WL
2384933, at *4 n.2 (C.D. Cal. May 7, 2010) (“Counsel’s actions are not ‘State
action’ that would trigger § 2244(d)(1)(B).”); Padilla v. Hartley, 2009 WL
1651423, at *3 (C.D. Cal. June 10, 2009) (stating that actions of petitioner’s

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To the extent Petitioner argues, under § 2254(d)(1)(D), that the factual predicate of this
claim was unknown to him until Frye and Lafler were decided, this claim is frivolous and fails
for the reasons set forth above.
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counsel cannot be imputed to the state for purposes of extending the limitations
period under § 2244(d)(1)(B)).
C.

Statutory Tolling
Under 28 U.S.C. § 2244(d)(2), the “time during which a properly filed

application for State post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted toward any period of
limitation.” Filing a postconviction petition after the statute of limitations has
expired, however, does not revive statutory tolling once the statute of limitations
has expired. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Green v. White,
223 F.3d 1001, 1003 (9th Cir. 2000). Petitioner’s 2010 Rule 40 postconviction
challenge to his conviction in CR No. 88-0826 did not toll the statute of limitations
on his claims.
D.

Equitable Tolling
The statute of limitations may be equitably tolled in appropriate

circumstances. Holland v. Florida, ––– U.S. ––––, 130 S. Ct. 2549, 2560-62
(2010). Equitable tolling is the exception, however, rather than the norm. See, e.g.,
Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (characterizing
the Ninth Circuit’s “application of the doctrine” as “sparing” and a “rarity”); Miles
v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (“[E]quitable tolling is unavailable
in most cases.”). “[T]he threshold necessary to trigger equitable tolling is very
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high, lest the exceptions swallow the rule.” Miranda v. Castro, 292 F.3d 1063,
1066 (9th Cir. 2002) (internal quotation marks and citation omitted).
To be entitled to equitable tolling, a petitioner must “show[] ‘(1) that
he has been pursuing his rights diligently, and (2) that some extraordinary
circumstances stood in his way’ and prevented timely filing.” Holland, 130 S. Ct.
at 2562 (citation omitted); see also Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
Both elements must be met. Pace, 544 U.S. at 418 (finding that the petitioner was
not entitled to equitable tolling, because he had not established the requisite
diligence). The petitioner bears the burden of showing that equitable tolling should
apply to him. Id.; see also Lawrence v. Florida, 549 U.S. 327, 336 (2007)
(observing that, to receive equitable tolling, the petitioner must prove the above two
requirements).
Petitioner submits no argument supporting equitable tolling. He
neither raises the existence of an extraordinary circumstance nor demonstrates that
an extraordinary circumstance caused his untimely filing of the Petition. See Bryant
v. Ariz. Att. Gen., 499 F.3d 1056, 1061 (9th Cir. 2007); Roy v. Lampert, 465 F.3d
964, 969 (9th Cir. 2006). “A petitioner must show that his untimeliness was caused
by an external impediment and not by his own lack of diligence.” Bryant, 499 F.3d
at 1061.

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Petitioner filed this Petition more than seventeen years after the statute
of limitations ran at the conclusion of his direct criminal proceedings in state court.
Petitioner provides no basis for statutory or equitable tolling of the Petition and the
court finds that it is time-barred.
V. CONCLUSION
Warden Paul Copenhaver is substituted as Respondent. The Petition is
DISMISSED with prejudice as time-barred. A certificate of appealability is
DENIED because Petitioner has not made a substantial showing of the denial of a
constitutional right. See 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 11, 2013.

/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge

Lii v. State, 1:12-00643 JMS-BMK; ORDER DISMISSING PETITION AS TIME-BARRED;G:\docs\prose
attys\Habeas\DMP\2013\Lii 12-643 jms (imp rsp & time-bar).wpd

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