Lopes v. State of Hawaii
Filing
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ORDER DENYING MOTION FOR RECONSIDERATION AND DISMISSING SECOND AMENDED PETITION re 17 , 18 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 2/25/2014. "Lopes's Motion for Reconsideration is DENIED, her Proposed Second Amended Petition is DISMISSED, and this action remains 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 served by first class mail at the address of record on February 26, 2014.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ROSALENE MILDRED LOPES,
#A0223855,
)
)
)
Petitioner,
)
)
vs.
)
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STATE OF HAWAII,
)
)
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Respondent.
_____________________________ )
CIV. NO. 13-00655 SOM/BMK
ORDER DENYING MOTION FOR
RECONSIDERATION AND
DISMISSING SECOND AMENDED
PETITION
ORDER DENYING MOTION FOR RECONSIDERATION AND
DISMISSING SECOND AMENDED PETITION
Before the court is Petitioner Rosalene Mildred Lopes’
letter dated January 30, 2014, Exhibits 1-29, and proposed Second
Amended Petition.
See ECF Nos. 17, 18.
The court construes
Lopes’s letter as a Motion for Reconsideration of the January 15,
2014 Order Granting In Forma Pauperis Application and Dismissing
Amended Petition.
See ECF No. 13.
The court finds that Lopes’s
claims are admittedly unexhausted and without merit, DENIES the
Motion for Reconsideration, and DISMISSES the Second Amended
Petition.
I.
PROCEDURAL HISTORY
On October 4, 2013, Lopes filed a prisoner civil rights
action alleging that her unidentified 2009 state conviction had
been expunged in 2010 and she was being falsely imprisoned.
See
Lopes v. Hawaii, Civ. No. 13-00507 DKW (D. Haw. Oct. 4, 2013).
Lopes sought monetary and injunctive relief.
Lopes admitted that
she did not have a copy of the expungement certificate and asked
the court’s assistance to obtain a copy.
The court took judicial
notice of the public dockets in Lopes’s 2009 state court
conviction in Cr. No. 06-1-1831, noting that there was no
official indication that it was expunged, reversed, or otherwise
called into question.
On October 31, 2013, United States
District Judge Derrick K. Watson dismissed the action pursuant to
28 U.S.C. ¶ 1915(e)(2) and § 1915A(b)(1), based on Lopes’s
failure to state a cognizable civil rights claim.
No. 5.
See id., ECF
Judge Watson found that granting relief on Lopes’s claims
would necessarily imply the invalidity of her conviction.
He
explained that she cannot seek monetary damages for a conviction
that has not yet been expunged, reversed, overturned, or
otherwise invalidated pursuant to the doctrine set forth in Heck
v. Humphrey, 512 U.S. 477, 487 (1994), and dismissed her civil
rights claims without prejudice.
To the extent Lopes sought
immediate release, Judge Watson found that her claims were
cognizable only in a petition for writ of habeas corpus.
Civ.
No. 13-00507, ECF No. 5, PageID #35-36.
On November 26, 2013, Lopes reasserted her claims for
release in the present action seeking a writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
Pet., ECF No. 1.
Lopes provided a
copy of the July 20, 2010, Expungement Certificate on which she
relies; it did not, however, indicate that the convictions she
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challenged had been expunged.
See ECF No. 4-1.
Lopes conceded
that she never sought relief in the state courts regarding her
claims in the three years since she received the Expungement
Certificate, although she pursued numerous administrative avenues
for relief.
On December 4, 2013, the court ordered Lopes 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.
Order, ECF No. 5.
See
On December 31, 2013, Lopes filed an Amended
Petition and in forma pauperis application.
ECF Nos. 11 and 12.
On January 15, 2014, this court granted Lopes’s in forma pauperis
application.
ECF No. 13.
Because Lopes had still failed to name
a proper respondent, and more importantly, to show cause why her
Petition should not be dismissed as unexhausted, this court
dismissed the Amended Petition without prejudice based on her
admitted failure to exhaust her claims in the Hawaii state
courts.
See id., PageID #82-83.
II.
LEGAL STANDARD
Because of Lopes’s pro se status, and because she
signed her letter within fifteen days of the date this action was
dismissed, the court liberally construes her letter as seeking
reconsideration of the January 15, 2014, dismissal of this
action, pursuant to Rule 59 of the Federal Rules of Civil
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Procedure.
See Fed. R. Civ. P. 59(e) (“A motion to alter or
amend a judgment must be filed no later than 28 days after the
entry of the judgment.”).
A successful motion for reconsideration must
demonstrate some reason that the court should reconsider its
prior decision and set forth facts or law of a strongly
convincing nature to induce the court to reverse its prior
decision.
2006).
White v. Sabatino, 424 F. Supp. 2d 1271, 1274 (D. Haw.
Three grounds justify reconsideration: (1) an intervening
change in controlling law; (2) the availability of new evidence;
and (3) the need to correct clear error or prevent manifest
injustice.
Id. (citing Mustafa v. Clark County Sch. Dist., 157
F.3d 1169, 1178-79 (9th Cir. 1998)).
“[A] motion for
reconsideration should not be granted, absent highly unusual
circumstances.”
Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir.
2003) (citation omitted).
III.
DISCUSSION
Lopes again admits that she has never raised her claims
regarding her alleged illegal imprisonment in any state court.
See Proposed Am. Pet. ECF No. 18.
She claims that she “wasn’t
made known that [she] had to file a petition to execute a
sentence conviction and judgement to expedite [her] release.”
Id., PageID #158.
She continues to assert that her Expungement
Certificate proves that her convictions in Cr. No. 06-1-1831 were
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expunged in June 2010.
She also provides numerous documents she
alleges establish the efforts she has made to seek release.
Assuming that Lopes is attempting to establish cause to
excuse her failure to exhaust her claims in the Hawaii state
courts through her alleged ignorance of the law, she fails.
Before a federal court can consider the merits of a habeas
petition, a petitioner must exhaust the remedies available to her
in state court.
28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455
U.S. 509, 518 (1982); Picard v. Connor, 404 U.S. 270, 275 (1971).
A claim is procedurally defaulted in federal court if the
petitioner failed to present the claim in a necessary state court
and “the court to which the petitioner would be required to
present [her] claims in order to meet the exhaustion requirement
would now find the claims procedurally barred.”
Thompson, 501 U.S. 722, 735 n.1 (1991).
Coleman v.
A procedurally defaulted
claim may be excused, and therefore be subject to federal review,
if the petitioner can show “cause and prejudice” for the failure
to exhaust, or make a colorable showing of actual innocence.
See
Gray v. Netherland, 518 U.S. 152, 162 (1996); Sawyer v. Whitley,
505 U.S. 333, 337 (1992); Murray v. Carrier, 477 U.S. 478, 485
(1986).
To establish cause, a petitioner must show that an
external impediment rendered her unable to comply with a state
procedural rule.
Carrier, 477 U.S. at 488.
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To show prejudice,
the petitioner must demonstrate that the error worked to her
substantial disadvantage, infecting the entire trial with
constitutional error.
Id.
If a petitioner cannot meet one of
these requirements, the court need not address the other.
States v. Frady, 456 U.S. 152, 168 (1982).
United
A procedural default
may also be excused if a petitioner can demonstrate a fundamental
miscarriage of justice by showing that a constitutional error
caused the conviction of one who is actually innocent.
Carrier,
477 U.S. at 496.
First, ignorance of the law is insufficient to satisfy
the “cause” standard.
See Hughes v. Idaho State Bd. of Corr.,
800 F.2d 905, 909 (9th Cir. 1986) (finding that an illiterate pro
se petitioner’s complete lack of legal assistance is not cause to
excuse a procedural default); see also Rasberry v. Garcia, 448
F.3d 1150, 1154 (9th Cir. 2006) (“ignorance of the law, even for
an incarcerated pro se prisoner, generally does not excuse prompt
filing”); Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004)
(ignorance of the law and of procedural requirements for filing a
timely notice of appeal is insufficient to establish cause to
excuse procedural default).
Even assuming Lopes was completely
ignorant of her need to bring her claims in the state courts,
despite the abundant record evidence that she pursued her claims
with the Hawaii Paroling Authority, the Hawaii Department of
Public Safety, the Hawaii Attorney General, the State Ombudsman,
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the Hawaii State Senate, the United States Department of Justice,
and civil attorneys, she fails to show cause based on her alleged
ignorance of the law.
through 17-29.
See generally Pet’r Exs, ECF Nos. 17-1
Because Lopes fails to show cause, the court need
not determine prejudice.
Second, Lopes cannot show actual innocence.
The
Expungement Certificate on which she relies does not include her
convictions in Cr. No. 06-1-1831 for Forgery in the Second Degree
in violation of Haw. Rev. Stats. § 708-852, and Theft in the
Second Degree in violation of Haw. Rev. Stats. § 708-831(1)(B) in
the list of expunged charges.
See ECF No. 17-4.
Rather, it
expunges sixteen charges she was not convicted of, including a
charge for Identity Theft in the Second Degree, in violation of
Haw. Rev. Stats. § 708-839.7.
This expunged charge is completely
separate from Lopes’s convictions in Cr. No. 06-1-1831.
Moreover, the letter attached to the Expungement Certificate
explicitly states that “expungement . . . involves the deletion
of only non-conviction charges resulting from an arrest.”
(emphasis added).
Id.
As the Hawaii Department of the Attorney
General, the United States Department of Justice, and this court
have all explained to Lopes, this means that only criminal
charges that did not result in a conviction were expunged.
There
is no doubt that Lopes’s convictions in Cr. No. 06-1-1831 for
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Forgery and Theft in the Second Degree remain intact, and that
her claims are frivolous.
Finally, Lopes concedes that she has never filed a
habeas petition in any state court concerning her claims.
Her
Second Amended Petition is thus wholly unexhausted and subject to
dismissal without prejudice on that basis alone.
See Coleman,
501 U.S. at 731; Rasberry, 448 F.3d at 1154.
IV.
CONCLUSION
Lopes provides no coherent reason for the court to
reconsider its decision dismissing her Amended Petition without
prejudice as unexhausted.
She sets forth no intervening change
in controlling law, new evidence, or need to correct clear error
or prevent manifest injustice.
1274.
See White, 424 F. Supp. 2d at
Lopes’s Motion for Reconsideration is DENIED, her Proposed
Second Amended Petition is DISMISSED, and this action remains
DISMISSED without prejudice.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 25, 2014.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Lopes v. Hawaii, Civ. No. 13-00655 SOM/BMK; J:\Denise's Draft Orders\SOM\Lopes 13-655
som (hab unexh).wpd
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