Lopes v. State of Hawaii

Filing 13

ORDER GRANTING IN FORMA PAUPERIS APPLICATION AND DISMISSING AMENDED PETITION re 12 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 1/15/2014. "Petitioner's claims concerning the alleged expungement of her criminal convictio ns are unexhausted, and the Petition is DISMISSED without prejudice." (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). Rosalene Mildred Lopes shall be served by first class mail at the address of record on January 16, 2014.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ROSALENE MILDRED LOPES,
#A0223855,

)
)
)
Petitioner,
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)
vs.
)
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STATE OF HAWAII,
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)
)
Respondent.
_____________________________ )

CIV. NO. 13-00655 SOM/BMK
ORDER GRANTING IN FORMA
PAUPERIS APPLICATION AND
DISMISSING AMENDED PETITION

ORDER GRANTING IN FORMA PAUPERIS APPLICATION
AND DISMISSING AMENDED PETITION
On November 26, 2013, Petitioner Rosalene Mildred Lopes
commenced this action seeking a writ of habeas corpus pursuant to
28 U.S.C. § 2254.

Pet., ECF No. 1.

On December 4, 2013, the

court ordered Petitioner to name a proper respondent, submit the
filing fee or an in forma pauperis application, and show cause in
writing why her claims should not be dismissed as unexhausted,
time-barred, and without merit.

See Order, ECF No. 5.

Before the court is Petitioner’s Amended Petition and
in forma pauperis application.

ECF Nos. 11 and 12.

in forma pauperis application is GRANTED.

Petitioner’s

Because Petitioner

fails to name a proper respondent or show cause why her Petition
should not be dismissed as unexhausted the Petition is DISMISSED
without prejudice.

I.

BACKGROUND

Petitioner pled guilty to Forgery and Theft in the
Second Degree in Crim. No. 1PC06-1-001831 on November 20, 2006.
See Hawaii v. Lopes, 1PC06-1-001831, avail. at the Hawaii State
Judiciary Public Access to Court Information (“Ho`ohiki”),
http://hoohiki1.courts.state.hi.us/jud/Hoohiki.

She alleges that

these convictions were expunged in 2010 and the State of Hawaii
is now illegally incarcerating her.

See Am. Pet., ECF No. 11;

Letter, ECF No. 4, Att. 4-1 (Expungement Certificate); see also
Lopes v. Hawaii, Civ. No. 13-00507 DKW (D. Haw. 2013) (alleging
that prison officials violated her civil rights by refusing to
credit the expungement of her criminal conviction in Hawaii v.
Lopes, 1PC06-1-001831, for Forgery and Theft in the second
degree).
II. IMPROPER RESPONDENT
The court informed Petitioner that she must name the
state officer having custody over her as the respondent to the
petition, normally the warden of her facility or the chief
officer in charge of state penal institutions.

See Rule 2(a) of

the Rules Governing § 2254 Cases; Brittingham v. United States,
982 F.2d 378, 379 (9th Cir. 1992).

She again fails to do so, and

this court lacks personal jurisdiction over the respondent.

2

III.

EXHAUSTION

Petitioner concedes throughout the Amended Petition
that she sought neither direct appeal nor post-conviction relief
concerning her criminal convictions.

Nor did she seek habeas

relief regarding the State’s alleged refusal to credit
expungement of her convictions.
10, 11(e), 12(c-d).

See Am. Pet., ECF No. 11 ¶¶ 8,

The Ho`ohiki website confirms that

Petitioner never raised her claims in the Hawaii courts.
http://hoohiki1.courts.state.hi.us/jud/Hoohiki.

See

Petitioner

states that, although she pursued remedies through the prison
grievance system, she was unaware that she “had to file an appeal
to any other petition after an expungement certificate.”

See Am.

Pet., ECF No. 11 PageID #63-64.
Under 28 U.S.C. § 2254(b), habeas relief may not be
granted unless a petitioner has exhausted the remedies available
in state court.1

Exhaustion requires the petitioner to fairly

present his or her claims to the state courts.

Ybarra v.

McDaniel, 656 F.3d 984, 991 (9th Cir. 2011), cert. denied, 133
S.Ct. 424 (2012).

The claims must be reviewed on the merits by

the highest court of the state.

Greene v. Lambert, 288 F.3d

1

A habeas petition “shall not be granted unless it appears
that - (A) the applicant has exhausted the remedies available in
the courts of the State; or (B)(I) there is an absence of
available State corrective process; or (ii) circumstances exist
that render such process ineffective to protect the rights of the
applicant.” 28 U.S.C. § 2254(b)(1).
3

1081, 1086 (9th Cir. 2002).

As a matter of comity, a federal

court will not entertain a habeas petition unless the petitioner
has exhausted the available state judicial remedies on every
ground presented in the petition.
509, 518 (1982).

See Rose v. Lundy, 455 U.S.

Fully unexhausted petitions must be dismissed

and are not subject to a stay-and-abey procedure.

Raspberry v.

Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006).
A federal court may raise the failure-to-exhaust issue
sua sponte and summarily dismiss on that ground.
v. Greer, 481 U.S. 129, 134–35 (1987).

See Granberry

Petitioner’s claims

concerning the alleged expungement of her criminal convictions
are unexhausted, and the Petition is DISMISSED without
prejudice.2
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 15, 2014.

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

Lopes v. Hawaii, Civ. No. 13-00655 SOM/BMK; PSA/Habeas/dmp/2014/Habeas Lopes/13-655
som (unexh)

2

Because the Petition is admittedly unexhausted, the court
need not address its merit or timeliness.
4