Curnutt v. State of Hawaii

Filing 11

ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF APPEALABILITY. Signed by JUDGE LESLIE E. KOBAYASHI on 04/14/2014. -- Cornutt's Petition is moot, unexhausted, meritless, and subject to the Younger abstention doctri ne, it is DISMISSED. (eps)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 served by first class mail on 04/15/2014.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GEORG ROBERT CURNUTT,
#A0260662,

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

CIV. NO. 14-00054 LEK/KSC
ORDER DISMISSING PETITION AND
DENYING CERTIFICATE OF
APPEALABILITY

ORDER DISMISSING PETITION AND DENYING
CERTIFICATE OF APPEALABILITY
Before the court is pro se petitioner Georg Robert
Curnutt’s petition for writ of habeas corpus brought pursuant to
28 U.S.C. § 2241.

Pet., Doc. No. 1.

Curnutt is a pretrial

detainee at the Hawaii Community Correctional Center (“HCCC”).
Cornutt complains he is subject to a “highly prejudicial” threepanel psychiatric proceeding pursuant to Hawaii Revised Statutes
(“HRS”) § 704-404, to determine his fitness for trial.

He

alleges this examination violates his Speedy Trial, Due Process,
and Equal Protection rights under the United States Constitution.
The Office of the Prosecuting Attorney for the City and
County of Honolulu and the Office of the Attorney General have
filed responses to this court’s preliminary order to show cause.
See Doc. Nos. 7, 9.

The court finds that the record is complete

and no reply is required from Curnutt.
reasons, the Petition is DISMISSED.

For the following

I.

BACKGROUND

On or about July 3, 2013, Curnutt was charged with
Attempted Murder in the Second Degree in the Circuit Court of the
Third Circuit, State of Hawaii.
Doc. No. 7-3.

See Cr. No. 13-1-0245, App. A.,

On October 8, 2013, Curnutt’s defense attorney

moved for a three-panel mental health examination to determine
Curnutt’s fitness to proceed, pursuant to HRS § 704-404.

Id.

The circuit court granted Curnutt’s motion on October 11, 2013,
and suspended the proceedings until Andrew D. Bisset, Ph.D.,
M.D., Dennis R. Donovan, Ph.D., ABDP, CSAC, and Henry H. Yang,
M.D., evaluated his fitness to proceed.

Id.; see also, Doc. No.

Resp.’ App. B, Doc. No. 9-4.
Curnutt does not trust Dr. Bisset to fairly assess his
mental health, however, based on their past interactions.
Pet., Doc. No. 1, PageId #5.

See

Curnutt asserts that his Due

Process, Equal Protection, and Speedy Trial rights are being
violated by Dr. Bisset’s appointment to the panel.
generally, Pet., Doc. No. 1.

See

Curnutt also claims that his prison

identification bracelet misidentifies him and he has limited
access to the prison law library.

Id.

Curnutt did not raise his concerns about Dr. Bisset
with the circuit court before filing this Petition.
13-1-0245, Doc. No. 7-3.

See Cr. No.

Thus, the circuit court was unaware of

Curnutt’s allegations against Dr. Bisset until he filed the
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instant Petition on January 31, 2014.

When the circuit court

became aware of Curnutt’s concerns, it issued an amended order
substituting Walter Jaeckle, M.D., for Dr. Bisset, on
February 10, 2014.

Id.

Drs. Donovan, Yang, and Jaeckle have now

each submitted their confidential reports to the circuit court.
See id., avail. at:
http://hoohiki1.courts.state.hi.us/jud/Hoohiki/ (last viewed Apr.
11, 2014).

The circuit court ordered Curnutt’s criminal

proceedings to resume on March 26, 2014.

Id.

II. LEGAL STANDARDS
A federal court may grant a petition for writ of habeas
corpus only 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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Habeas relief may not be granted “unless it is

shown that the earlier state court’s decision ‘was contrary to’
federal law then clearly established in the holdings of [the
Supreme] Court; or that it ‘involved an unreasonable application
of’ such law; or that it ‘was based on an unreasonable
determination of the facts' in light of the record before the
state court.”

Harrington v. Richter, ––– U.S. ––––, 131 S. Ct.

770, 785 (2011) (citations omitted).

Further, a court may not

grant a petition for writ of habeas corpus unless the applicant
has exhausted the remedies available in the State courts or such
remedies are unavailable or ineffective.
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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 review each petition for writ of habeas corpus.

The court

must 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).

A petition

must also 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)).

The Advisory Notes to Rule

8 also state that the court may dismiss a petition for writ of
habeas corpus at several stages of a case, including “summary
dismissal under Rule 4; a dismissal pursuant to a motion by the
respondent; a dismissal after the answer and petition are
considered; or a dismissal after consideration of the pleadings
and an expanded record.”
III.

DISCUSSION

Curnutt’s Petition is subject to dismissal on several
bases.

First, the relief Curnutt seeks, removal of Dr. Bisset on

the HRS § 704-404 examination panel and reinstatement of his
criminal proceedings, has been satisfied, rendering his Petition
moot.

See Blair v. Martel, 645 F.3d 1151, 1157 (9th Cir. 2011)
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(finding a request to order the California Supreme Court to hear
the petitioner’s direct appeal in his criminal proceedings became
moot after his appeal was decided on the merits) (citing Church
of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992)
(“[I]f an event occurs while a case is pending on appeal that
makes it impossible for the court to grant any effectual relief
whatever to a prevailing party, the appeal must be dismissed.”
(internal quotation marks omitted)).

Here, the circuit court has

replaced Dr. Bisset with Dr. Jaeckle, the § 704-404 examination
is complete, and Curnutt’s criminal proceedings have resumed,
rendering his claims for relief moot.
Second, to the extent Curnett is dissatisfied with the
result he received, his claims are unexhausted.

A

person in

state custody must exhaust his state court remedies before a
federal court may grant habeas corpus relief.

See 28 U.S.C.

§ 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 838, 842
(1999).

To do so, the petitioner must fairly present his federal

claims in the highest state court with authority to hear the
claims so the State has the opportunity to pass upon and correct
alleged violations of the prisoner’s federal rights.

Duncan v.

Henry, 513 U.S. 364, 365 (1995) (per curiam) (citing Picard v.
Connor, 404 U.S. 270, 275

(1971); see also, Johnson v. Zenon, 88

F.3d 828, 829 (9th Cir. 1996); Peterson v. Lampert, 319 F.3d
1153, 1156 (9th Cir. 2003) (petitioner must reach point where he

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has no state remedies available to him at the time he files his
federal habeas petition).

Cornutt has not pursued his claims

beyond the state circuit court.
Third, Curnutt’s claims are without merit.

While he

has a Sixth Amendment right to a speedy trial, that right is
“amorphous . . . slippery . . . [and] consistent with delays and
depend[ent] upon circumstances.”

Vermont v. Brillon, 556 556

U.S. 81, 89 (2009) (quoting Barker v. Wingo, 407 U.S. 514, 522
(1972) (internal quotation marks omitted)).

Factors to weigh in

determining whether the right has been violated include the
reason for the delay, the length of the delay, the defendant’s
assertion of his right, and any prejudice to the defendant.
Brillon, 556 U.S. at 90; Barker, 507 U.S. at 530.

Relevant here,

delay caused by defense counsel is excluded from the computation.
Brillon, 556 U.S. at 90-91; see also, Haw. R. Penal P. 48(c)
(expressly excluding from computation of speedy trial right
continuances requested, or consented to, by the defendant and
delay due to proceedings to determine a defendant’s mental
competency); see also, Hawaii v. Schoenlein, 2011 WL 2611286, at
*1 (Haw. App. 2011); Alldredge v. Harrington, 2011 WL 3047624,
*11 (N.D. Cal. 2011) (“The period during which defendant is not
competent is not counted in the . . . assessment of whether the
trial occurred in a timely fashion, because a state cannot,
consistent with due process, hold a trial for a mentally

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incompetent defendant.”).
Cornutt’s defense counsel sought a mental health
fitness determination, and even if he had not, that time is
specifically excludable from computation of Curnutt’s speedy
trial rights.

Subtracting the 166 days during which Curnutt was

undergoing this examination,1 from the 266 days that ran between
the date he was arrested and the date his trial resumed,2 leaves
100 days to consider.

This short delay attributed to Curnutt’s

defense counsel’s motion did not prejudice Curnutt or violate his
Speedy Trial rights.

See Barker, 407 U.S. at 530 (enumerating

the factors to be considered).

Moreover, because the circuit

court replaced Dr. Bisset at Cornutt’s urging, there is no
discernable Due Process or Equal Protection violation.
Finally, a federal court is prohibited from enjoining a
state criminal proceeding without a valid showing of
“extraordinary circumstances” that warrant federal intervention.
Younger v. Harris, 401 U.S. at 43–54; see Gilbertson v. Albright,
381 F.3d 965, 984 (9th Cir. 2004).

Younger abstention is

appropriate when: (1) the state court proceedings are ongoing;
(2) the proceedings implicate important state interests; and (3)
the state proceedings provide an adequate opportunity to raise

1

From October 11, 2013, when the circuit court suspended the
proceedings until March 26, 2014, when the proceedings resumed. See
http://hoohiki1.courts.state.hi.us/jud/Hoohiki/
2

From July 3, 2013, when Curnutt was arrested, until March 26, 2013,
when the trial resumed. Id.

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the constitutional claims. Middlesex Cnty. Ethics Comm. v. Garden
State Bar Ass’n, 457 U.S. 423, 432 (1982); Baffert v. Cal. Horse
Racing Bd., 332 F.3d 613, 617 (9th Cir. 2003).

Cornutt’s

criminal proceeding is ongoing, it clearly implicates important
state interests, and he may raise any constitutional claims he
may have therein.3
IV.

CONCLUSION

Because Cornutt’s Petition is moot, unexhausted,
meritless, and subject to the Younger abstention doctrine, it is
DISMISSED.
Because Curnutt does not demonstrate that reasonable
jurists would find this court’s assessment is debatable or wrong,
a certificate of appealability is DENIED.

See Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S.
473, 484 (2000); 28 U.S.C. § 2253(c).
IT IS SO ORDERED.

3
To the extent Curnutt raises claims concerning his misspelled
identification bracelet and alleged lack of library access separately, rather
than as support for his habeas claims, he may file a prisoner civil rights
complaint pursuant to 42 U.S.C. § 1983.

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DATED: Honolulu, Hawaii, April 14, 2014.

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

Cornutt v. Hawaii, Civ. No. 14-00054 LEK/KSC; psas habeas 2014; J:\Denise's Draft
Orders\LEK\Curnett 14-54 lek (dsm dny coa; pndg st. prdgs, moot, unexh).wpd

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