Villados v. Thomas

Filing 6

ORDER DENYING PETITION AND CERTIFICATE OF APPEALABILITY re: 1 . Signed by JUDGE LESLIE E. KOBAYASHI on 8/5/2013. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications receive d this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Petitioner Albert Villados, Jr. and David M. Louie, Esq., Attorney General for the State of Hawaii, will be served by first class mail on August 6, 2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ALBERT VILLADOS, JR,
#A4001148,

)
)
)
Petitioner,
)
)
vs.
)
)
TODD THOMAS,
)
)
Respondent.
)
_____________________________ )

CIV. NO. 13-00374 LEK/KSC
ORDER DENYING PETITION AND
CERTIFICATE OF APPEALABILITY

ORDER DENYING PETITION AND CERTIFICATE OF APPEALABILITY
Before the court is pro se petitioner Albert Villados,
Jr.’s petition for writ of habeas corpus brought pursuant to 28
U.S.C. § 2254.

Because the Petition fails to state a cognizable

claim for relief and its claims are not amenable to amendment, it
is DISMISSED with prejudice pursuant to Rule 4 of the Rules
Governing Section 2254 Cases.

A certificate of appealability is

DENIED.
I.

BACKGROUND1

On December 2, 2009, Villados was convicted by a jury
in the Circuit Court of the Second Circuit, State of Hawaii
(circuit court), of Promoting A Dangerous Drug in the Second
Degree (Count 1), and Prohibited Acts Related to Drug

1

These details are taken from the Petition and its
exhibits, and from the unpublished decisions in Villados’ state
criminal case, CR. No. 08-1-0115. See Hawaii v. Villados, No.
SCWC-30442, 2012 WL 4092485 (Haw. Sept. 17, 2012); 2012 WL
3262752 (Haw. Jul. 20, 2012); 2011 WL 5909631 (Haw. App. Nov. 28,
2011).

Paraphernalia (Count 2).2

The Notice of Entry of Judgment of

Conviction and Sentence was filed on April 15, 2010.

Villados’

appellate counsel timely appealed, raising four points of error:
1. The Circuit Court abused its discretion
in admitting testimony regarding Villados’s
prior bad acts;
2. The Circuit Court erred in admitting the
hearsay testimony of Villados’s post-arrest
statements;
3. Absent the inadmissible prior bad act and
hearsay evidence, there was insufficient
evidence to support Villados’s convictions;
and
4. The Circuit Court’s consecutive term
sentences, with a potential maximum term of
thirty-five years of incarceration, violated
Villados’s right to a jury trial and his due
process rights where the court knew of the
State’s plea offer and allegedly imposed a
significantly harsher sentence upon Villados
because he exercised his right to a jury
trial.
Ex. B, Summary Disposition Order, ECF No. 1-2.
On November 28, 2011, the Hawaii Intermediate Court of
Appeals (“ICA”) affirmed the circuit court’s judgment.

Villados

requested his appellate attorney to file an application for writ
of certiorari to the Hawaii Supreme Court.

After reviewing the

ICA decision and finding no basis for seeking certiorari,
Villados’s attorney refused to file a petition for certiorari and
told him that, if he disagreed and felt that her decision

2

In violation of Haw. Rev. Stats. §§ 712–1242(1)(b)(i) and
329–43.5(a) (Supp. 2010).
2

constituted ineffective assistance of counsel, he should file a
post-conviction petition under Hawaii Rules of Penal Procedure
40.

See Letter, Ex. H, ECF No. 1-8 (dated February 15, 2011).
Judgment on appeal was entered on January 4, 2012.

Order, Ex. C, ECF No. 1-3.

See

Approximately six months later,

Villados submitted a pro se application for certiorari, a “Motion
for Relief From Default and Permission to File a Writ of
Certiorari,” and a motion for appointment of counsel in the
Hawaii Supreme Court.

Ex. I, J, K, ECF Nos. 1-9 to 1-11.

These

documents were signed on June 12, 2012, and electronically filed
on June 18, 2012.

Id.

On July 20, 2012, the Hawaii Supreme

Court dismissed Villados’ certiorari petition as untimely and
denied Villados’ motions.

See Exs. C and D, ECF Nos. 1-3, 1-4;

see also Haw. R. App. P. 40.1.3
On or about September 6, 2012, Villados wrote a letter
to the Hawaii Supreme Court requesting an extension of time to
seek reconsideration.

See Hawaii v. Villados, No. SCWC-30442,

2012 WL 4092485 (Haw. Sept. 17, 2012).

The Hawaii Supreme Court

construed the letter as a motion for reconsideration and, because
Hawaii’s rules do not provide for reconsideration of decisions

3

Effective January 1, 2012, applications for certiorari of
ICA judgments or dismissal orders entered after that date must be
filed within thirty days of the judgment on appeal or order. See
Haw. R. App. P. 40.1. Prior to the amendment, and for orders or
judgments filed before January 1, 2012, an applicant was entitled
to ninety days.
3

accepting or rejecting certiorari, denied it on September 17,
2012.

Id.; see also Haw. R. App. P. 40.1(h).

Despite this

determination, Villados moved ten days later in the circuit court
for reconsideration of the Hawaii Supreme Court’s rejection of
his petition for certiorari.

See Ex. G, ECF No. 1-7.

On June 5,

2013, the circuit court found that it lacked authority to review
the Hawaii Supreme Court’s decision and denied the motion.
Villados signed and mailed the present Petition on
July 18, 2013, and it was filed on July 26, 2013.

ECF No. 1.

Villados raises two grounds for relief: The Hawaii Supreme Court
committed plain error when it (1) rejected his petition for
certiorari as untimely, without “determining his legal counsel of
record;” (Ground One) and (2) failed to apply the prisoner
“mailbox rule” to his petition for certiorari and to the State’s
opposition to that petition (Ground Two).
PageID #5, #10.

See Pet., ECF No. 1,

Villados has not raised these issues in the

Hawaii state courts.

Villados asserts that he has filed a Rule

40 post-conviction petition in the circuit court alleging
ineffective assistance of counsel, that he claims is pending and
has not been assigned a docket number.4

See Pet., ECF No. 1,

PageID #4, 5, 9, 12, 16.

4

This alleged Rule 40 post-conviction petition has not been
recorded on the Hawaii State Judiciary’s Public Access to Court
Information, as of the date of this order. See
http://hoohiki1.courts.state.hi.us/jud/Hoohiki.
4

II.

LEGAL STANDARDS

A federal court may only grant a petition for writ of
habeas corpus if the petitioner is “in custody in violation of
the Constitution or laws or treaties of the United States.”
U.S.C. § 2254(a).

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A court may not grant a petition for writ of

habeas corpus unless it appears that the applicant has exhausted
the remedies available in the State courts or such remedies are
unavailable or ineffective.

28 U.S.C. § 2254(b)(1).

Rule 4 of the Rules Governing § 2254 Cases in the
United States District Courts (“Habeas Rules”) requires the court
to make a preliminary review of each petition for writ of habeas
corpus.

The court must summarily dismiss a petition “[i]f it

plainly appears from the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court.”
Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.
1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.
1990).

Habeas Rule 2(c) requires that a petition (1) specify all

grounds for relief; (2) state the facts supporting each ground;
and (3) state the relief requested.
sufficient.

Notice pleading is not

A petition must state facts that point to a real

possibility of constitutional error.

Habeas Rule 4, Advisory

Committee Notes (1976); O’Bremski, 915 F.2d at 420 (quoting
Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)).

Vague,

conclusory, or palpably incredible allegations may be summarily
5

dismissed.

Hendricks, 908 F.2d at 491.

“[T]he purpose of the

heightened pleading standard in habeas cases is to help a
district court weed out frivolous petitions before calling upon
the State to answer”.

Mayle v. Felix, 545 U.S. 644, 669-70

(2005).
III.

DISCUSSION

There are several obvious obstacles to relief for
Villados.

First, his exhibits and statements show that his

claims are wholly unexhausted and likely procedurally barred.
Villados did not raise the issues presented here on direct appeal
or in his untimely petition for certiorari.

Although he asserts

that he raised an ineffective assistance of counsel claim in his
allegedly pending Rule 40 petition, he raises no such claim
here.5
It is also appears that the Petition is time-barred.
See 28 U.S.C. § 2244(d)(1).

Villados’ conviction became final on

April 5, 2012, ninety days after judgment on appeal entered on
January 4, 2012, and the time for seeking review in the United
5

The Hawaii Supreme Court explicitly rejected Villados
untimely application for lack of jurisdiction. See Exs. D & E,
ECF Nos. 1-4 7 1-5. Although he argued that counsel’s refusal to
file the certiorari application was an extraordinary circumstance
excusing his late filing, this Court may presume the supreme
court did not adjudicate this claim on its merits. See
Harrington v. Richter, 131 S. Ct. 770, 784–85 (2011) (stating
that the presumption that a state court adjudicated a claim on
its merits may be overcome when “there is reason to think some
other explanation for the state court’s decision is more
likely”)(citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).
6

States Supreme Court expired.
641, 653-54 (2012).

See Gonzalez v. Thaler, 132 S. Ct.

Absent statutory or equitable tolling, the

limitation period expired on April 5, 2013.

Villados’ untimely

petition for certiorari and his two rejected motions for
reconsideration do not constitute “properly filed” postconviction petitions so as to toll the statute under
§ 2244(d)(2).

See Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005)

(holding that “[w]hen a postconviction petition is untimely under
state law, that [is] the end of the matter for purposes of
§ 2244(d)(2)”); Bonner v. Carey, 425 F.3d 1145, 1148 (9th Cir.
2005) (stating, “‘[p]roperly filed’ means the petition’s
‘delivery and acceptance are in compliance with the applicable
laws and rules governing filings in that state.’”).

Based on his

statements and the events presented in the Petition, it is also
unlikely that Villados is entitled to equitable tolling.

See

Pace, 544 U.S. at 418 (requiring an inmate to establish his
diligence in pursuing his rights and that extraordinary
circumstances prevented his timely filing of a federal petition).
The court need not decide these issues, however,
because Villados fails to present a colorable federal question,
and the court may deny an unexhausted petition on its merits if
it fails to state a colorable claim for relief.

See 28 U.S.C.

§ 2254(b)(2) (holding that a court may deny habeas application on
merits notwithstanding failure to exhaust); Cassett v. Stewart,
7

406 F.3d 614, 623-24 (9th Cir. 2005) (same); Lambrix v.
Singletary, 520 U.S. 518, 523 (1997) (holding that a habeas
court, in interests of judicial economy, may bypass asserted
procedural bar to consider claim on merits).
A.

Ground One
In Ground One, Villados alleges the Hawaii Supreme

Court erred by dismissing his certiorari petition as untimely
“without determining his legal counsel of record.”
1, PageID #6.

Pet., ECF No.

To the extent Villados claims that the Hawaii

Supreme Court erred in determining that his application for
certiorari was untimely, he fails to state a claim.

A federal

writ is not available for alleged error in the interpretation or
application of state law.

See 28 U.S.C. § 2254(a) (limiting

habeas relief to violations of federal rights); Wilson v.
Corcoran, 562 U.S. ––––, ––––, 131 S. Ct. 13, 16 (2010); Estelle
v. McGuire, 502 U.S. 62, 67–68 (1991) (stating, “it is not the
province of a federal habeas court to reexamine state-court
determinations on state-law questions”).

Moreover, it is clear

that pursuant to Haw. R. App. P. 40.1(a)(1), which allows thirty
days to seek certiorari after entry of judgment, the petition was
untimely.
To the extent Villados asserts that the Hawaii Supreme
Court should have determined his appellate counsel was
ineffective for her refusal to seek certiorari and excuse his
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untimely filing, or should have appointed him new counsel, he
also fails to state a claim.

Villados had a constitutional right

to the effective assistance of appellate counsel during his
direct appeal before the ICA.
U.S. 668 (1984).

See Strickland v. Washington, 466

That right to counsel does not extend to his

discretionary petition for certiorari to the Hawaii Supreme
Court, however.

See Pennsylvania v. Finley, 481 U.S. 551, 555

(1987) (holding there is no constitutional right to counsel in
discretionary proceedings or habeas proceedings; stating, “the
right to appointed counsel extends to the first appeal of right,
and no further”); Wainwright v. Torna, 455 U.S. 586, 587–88
(1982) (no constitutional right to counsel when pursuing
discretionary state appeal); Smith v. Idaho, 392 F.3d 350, 356–57
(9th Cir. 2004) (“It is well-established that criminal defendants
have no constitutional right to counsel beyond their first appeal
as of right and hence no right to counsel in a discretionary
appeal to the State’s highest court.”); Foster v. Garcia, 2006 WL
3392750, at *27 (E.D. Cal. Nov. 21, 2006), adopted, 2007 WL
173770 (E.D. Cal. Jan. 19, 2007) (“Because the right to counsel
extends only to the first appeal of right, counsel was not and
could not have been ineffective for failing to file a petition
for review . . . [in] the California Supreme Court, as review by
that court is discretionary, to which no right of counsel
attaches. [citations].”); accord Ellington v. Carey, 2010 WL

9

2652284, at *17 (C.D. Cal. May 19, 2010), adopted, 2010 WL
2652282 (C.D. Cal. June 30, 2010).
Review of an ICA decision by the Hawaii Supreme Court
is entirely discretionary.

See Haw. R. Stat. § 602-59(a); Haw.

R. App. P. 40.1(b).

Nor is such review required to fully exhaust

a claim in Hawaii.

See Haw. R. App. P. 40.3 (“an application for

writ of certiorari shall not be required to exhaust available
state remedies regarding a claim of error”).

Villados does not

allege claims relating to his appellate counsel’s representation
before the ICA, but only faults her failure to file a petition
for certiorari.

He cannot predicate a claim of error against the

Hawaii Supreme Court, based on ineffective assistance of
appellate counsel that occurred after the ICA affirmed his
conviction.

Villados’s claim that counsel subsequently was

ineffective for failing to file a timely petition for review
fails to present a colorable federal question.
Ground One fails to state a colorable federal question
and is DENIED.

See 28 U.S.C. § 2254(a) (federal habeas relief

may be granted “only on the ground that [petitioner] is in
custody in violation of the Constitution or laws or treaties of
the United States”); Gutierrez v. Griggs, 695 F.2d 1195, 1198
(9th Cir.1983) (Rule 4 “explicitly allows a district court to
dismiss summarily the petition on the merits when no claim for
relief is stated”).

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B.

Ground Two
Villados alleges the Hawaii Supreme Court erred when it

failed to apply the prison mailbox rule to his application for
certiorari.

See Houston v. Lack, 487 U.S. 266, 271–76 (1988)

(holding that a federal habeas petition is deemed filed on the
date a pro se prisoner gives it to prison authorities for
mailing); Setala v. J.C. Penney, Co., 97 Haw. 485, 485, 40 P.3d
886, 887 (Haw. 2002) (holding a notice of appeal is deemed filed
on the day it is tendered to prison officials by a pro se
prisoner).

Villados was required to file his certiorari

application on or before February 3, 2012, for it to be
considered timely.

See Ex. E, Hawaii v. Villados, No. SCWC-

30442, at 3 (Haw. Jul. 20, 2012), dissent, Acoba, J.

Whether the

supreme court considered June 12, 2012, the date Villados signed
and sent the application, or June

18, 2012, the date it was

filed in the with the court, as the operative date, the
application was untimely by more than four months.
To the extent Villados also complains that the State’s
opposition to his certiorari application was “in default,”
because it was electronically filed on June 21, 2012, and that
the supreme court failed to apply the “mailbox rule” to its
filing, he is mistaken.

The prisoner mailbox rule does not apply

to non-prisoner pro se litigants and there was no error in
considering the State’s pleading as of the date it was

11

electronically filed.

Ground Two fails to state a cognizable

claim for relief and is DENIED.
IV. CERTIFICATE OF APPEALABILITY
The Court is required to issue or deny a certificate of
appealability when a final ruling on a habeas petition is
entered.

See Habeas Rule 11(a), foll. 28 U.S.C. § 2254.

The

statute provides that a certificate of appealability may issue
. . . only if the applicant has made a substantial showing of the
denial of a constitutional right, and the court must indicate
which issue or issues satisfy that standard.
§ 2253(c).

28 U.S.C.

A prisoner must demonstrate that reasonable jurists

would find this Court’s assessment is debatable or wrong.

See

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000).

Villados’s claims do not

meet this standard and a certificate of appealability is DENIED.
V.

CONCLUSION

The Petition fails to state cognizable a claim
warranting relief under 28 U.S.C. § 2254 and is DENIED.
certificate of appealability is DENIED.
IT IS SO ORDERED.

12

A

DATED AT HONOLULU, HAWAII, August 5, 2013.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

Villados v. Thomas, Civ. No. 13-00374 LEK/KSC; G:\docs\prose
attys\Habeas\DMP\2013\Villados 13-374 lek (dsm pet. R4, no merit).wpd

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