Cornelio v. Espinda

Filing 11

ORDER DISMISSING PETITION AS TIME-BARRED AND DENYING CERTIFICATE OF APPEALABILITY re 1 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/22/2015. (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). William A. Cornelio, III shall be served by first class mail at the address of record on June 23, 2015.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
WILLIAM A. CORNELIO, III,
#A0192661,

)
)
)
Petitioner,
)
)
vs.
)
)
NOLAN ESPINDA,
)
)
Respondent.
)
_____________________________ )

CIV. NO. 15-000058 SOM/BMK
ORDER DISMISSING PETITION AS
TIME-BARRED AND DENYING
CERTIFICATE OF APPEALABILITY

ORDER DISMISSING PETITION AS TIME-BARRED
AND DENYING CERTIFICATE OF APPEALABILITY
Before the court is pro se petitioner William A.
Cornelio, III’s, petition for writ of habeas corpus, brought
pursuant to 28 U.S.C. § 2254.

Cornelio challenges the Fourth

Amended Judgment, Conviction, and Sentence, entered in Cr. No.
94-0-000590, by the Circuit Court of the Second Circuit, State of
Hawaii (“circuit court”), on or about September 13, 2011.

See

Pet., Doc. No. 1, PageID #1; State v. Cornelio, Cr. No. 94-0000590: http://hoohiki1.courts.state.hi.us/jud/Hoohiki/main.htm
(last visited April 15, 2015).
On April 17, 2015, the court issued a Preliminary Order
to Show Cause And Answer directing the parties to address the
timeliness of this Petition and whether equitable or statutory
tolling applied.
21, 2015.

Doc. No. 7.

Doc. No. 9.

Doc. No. 10.

Respondent filed his Answer on May

Cornelio filed a Reply on June 1, 2015.

After carefully considering the Answer, Reply, and

record, the court DISMISSES the Petition as time-barred under 28
U.S.C. § 2244(d)(1).
I. BACKGROUND
Cornelio timely filed a notice of appeal (“NOA”) with
the Hawaii Intermediate Court of Appeals (“ICA”), challenging the
state circuit court’s entry of the Fourth Amended Judgment in Cr.
No. 94-0-000590, on September 23, 2011.

See Cornelio v. State,

No. CAAP 11-000701 (Haw. App. Apr. 12, 2012), Doc. No. 9-2,
PageID #49-50.

On November 22, 2011, the state appellate clerk

filed the record on appeal and informed Cornelio by mail that the
jurisdictional statement and opening brief were due December 2,
2011, and
#49.

January 3, 2012, respectively.

Doc. No. 9-2, PageID

Cornelio failed to file either document or otherwise

communicate with the court.

Id.

On March 20, 2012, the ICA sent Cornelio a default
notice explaining that the time for filing the jurisdictional
statement and opening brief had expired, the court would take
notice of this failure on March 30, 2015, and the appeal might
then be dismissed pursuant to Rule 30 of the Hawaii Rules of
Appellate Procedure.

On March 26, 2012, this notice was returned

to the ICA, marked “NOT HERE” and “UNABLE TO FORWARD.”

Doc. No.

9-2, PageID #50.
On April 12, 2012, having received no response from
Cornelio, the ICA dismissed the appeal for Cornelio’s failure to

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prosecute.

Id.

The ICA found that Cornelio had failed (1) to

file a jurisdictional statement or opening brief on appeal; (2)
to provide a notice of change of address to the court; or (3) to
otherwise take steps to prosecute the action beyond filing an
NOA.

Id.

There is no indication on the record that Cornelio

ever contacted the ICA to inquire about his appeal.
More than a year later, on or about July 25, 2013,1
Cornelio sought state post-conviction relief from the Fourth
Amended Judgment, under Rule 40 of the Hawaii Rules of Penal
Procedure (“2013 Rule 40 Petition”).

See Cornelio v. State, SPP-

13-1-0007(2) (Haw. 2d Cir. Ct. 2013), Doc. No. 9-3, PageID #5358.

The ICA affirmed the circuit court’s denial of the 2013 Rule

40 Petition on August 29, 2014, and the Hawaii Supreme Court
denied certiorari on January 25, 2015.

See Cornelio v. State,

CAAP-13-0005273, 2014 WL 4284133, *5 (Haw. App. Aug. 29, 2014),
cert. den., SCWC-13-0005273, 2015 WL 340838, *1 (Haw. Jan. 26,
2015).

Cornelio filed the present Petition on March 2, 2015.2
Cornelio raises three grounds for relief: (1) the

“separate” sentence imposed for each conviction, “without the
authorization of the jury,” was illegal; (2) he had suffered

1

Cornelio signed the 2013 Rule 40 Petition on July 14,
2013, but there is no indication when he gave it to prison
authorities for mailing.
2

Cornelio signed the Petition on February 10, 2015, and
mailed it on February 12, 2015. It was returned for insufficient
postage, and resent on February 26, 2015. See Doc. No. 1-1.
3

double jeopardy, for conviction of five firearms offenses when
there was only one firearm incident; and (3) he was subjected to
cruel and unusual punishment, because his sentence was allegedly
disproportionately harsh compared to other sentences imposed for
similar crimes.

Pet. Doc. No. 1, PageID #6, 8, 9.

Cornelio

asserts that he exhausted these issues either on direct appeal or
in his 2013 Rule 40 Petition.

See id.; see also Cornelio v.

State, SPP No. 13-1-0007(2), avail. at:
http://hoohiki1.courts.state.hi.us/jud/Hoohiki/main.htm (last
visited April 15, 2015).
I.

28 U.S.C. § 2244

Cornelio’s claims are governed by the statute of
limitation 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;

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(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 discovered through the
exercise of due diligence.

A petitioner may also be entitled to equitable tolling
of the statute upon a showing of extraordinary circumstances.
See Pace v. DiGuglielmo, 544 U.S. 408, 418 n.8 (2005)
(“Generally, a litigant seeking equitable tolling bears the
burden of establishing two elements: (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.”); Randle v. Crawford, 578 F.3d
1177, 1186 (9th Cir. 2009).
III.

THE PARTIES’ ARGUMENTS

Respondent argues that the Petition is time-barred
because Cornelio took no action for more than a year after the
ICA dismissed his appeal.

Respondent asserts that the statute of

limitation (1) was not statutorily tolled under 28 U.S.C.
§ 2244(d)(2) when Cornelio filed the 2013 Rule 40 Petition,
because it had already expired; and (2) cannot be statutorily or
equitably tolled because there were no impediments to his

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prosecuting his appeal or filing this Petition.

See Answer, Doc.

No. 9, PageID #43-44.
Cornelio asserts that he timely appealed the Fourth
Amended Judgment on September 23, 2011, which is not disputed.
He claims his transfer from Maui Community Correctional Center
(“MCCC”) to Halawa Correctional Facility (“HCF”) on February 7,
2012, prevented him from receiving any ICA documents, filing his
briefs, or communicating with the court.

He suggests that he was

unaware his appeal had been dismissed until he filed the 2013
Rule 40 Petition.

Reply, Doc. No. 10.

Cornelio says he was on

“sep[a]ratee status” at HCF, and “all of his rights/privile[ges]
were extremely limited.”

Id., PageID #77.

On June 27, 2012,

Cornelio says he was transferred to the Saguaro Correctional
Center (“SCC”), in Eloy, Arizona, and placed in segregation until
his transfer to the Red Rock Correctional Center (“RRC”), also in
Eloy, Arizona, a month later.
Cornelio says that he filed the 2013 Rule 40 Petition
immediately on his return to Hawaii, on or about July 25, 2013,
so that he could exhaust his “final ground” before proceeding in
the federal court.

He claims that his transfers and segregated

housing between February 7, 2012, and July 25, 2013, were
impediments to his “filing any petition despite [his] diligently
pursuing his rights.”

Doc. No. 10, PageID #78. Cornelio also

asserts that these alleged state-created impediments were

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extraordinary circumstances that entitle him to equitable
tolling.3

Id., PageID #79.
IV.

DISCUSSION

The statute of limitation began to run on April 12,
2012, thirty days after the ICA dismissed Cornelio’s appeal of
the Fourth Amended Judgment for failure to prosecute.

See 28

U.S.C. § 2244(d)(1)(A); Gonzalez v. Thaler, 132 S. Ct. 641, 646
(2012) (“[F]or a state prisoner who does not seek review in a
State’s highest court, the judgment becomes ‘final’ on the date
that the time for seeking such review expires.”); Haw. R. App. P.
40.1 (providing thirty days to seek certiorari of ICA decisions
in Rule 40 petitions).

Thus, the statute of limitation began to

run on May 13, 2012, when the time to seek review with the Hawaii
Supreme Court passed, and absent tolling, expired 365 days later
on May 13, 2013.
A.

No State Impediment or Entitlement to Equitable Tolling
A claim under 28 U.S.C. § 2244(d)(1)(B) “must satisfy a

far higher bar than that for equitable tolling.”
Yates, 571 F.3d 993, 1000 (9th Cir. 2009).

Ramirez v.

Section 2244(d)(1)(B)

applies only to impediments created by state action that violates
the Constitution or laws of the United States.

3

Id.; Shannon v.

Cornelio does not assert a newly recognized, retroactive
constitutional right, or a newly discovered factual predicate.
See 28 U.S.C. § 2244(d)(1)(C-D).
7

Newland, 410 F.3d 1083, 1088 n.4 (9th Cir. 2005).

A petitioner

is entitled to the commencement of a new limitations period under
§ 2244(d)(1)(B) only if the impediment “altogether prevented him
from presenting his claims in any form, to any court.”
571 F.3d at 1001.

Ramirez,

“To obtain relief under § 2244(d)(1)(B), the

petitioner must show a causal connection between the unlawful
impediment and his failure to file a timely habeas petition.”
Bryant v. Ariz. Atty. Gen., 499 F.3d 1056, 1060 (9th Cir. 2007)
(citing Gaston v. Palmer, 417 F.3d 1030, 1034–35 (9th Cir. 2005),
amended by 447 F.3d 1165 (9th Cir. 2006)).
In asserting that the state impeded the pursuit of his
rights between February 7, 2012, and July 25, 2013, Cornelio
relies on Davis v. Abercrombie, Civ. No. 11-00144 LEK/BMK (D.
Haw. Mar. 8, 2011) (still pending).

He claims that he was a

member of the class that filed that suit and that the case
involved the denial of access to the courts for inmates housed at
RRCC and SCC.

First, Davis was filed in the state court on

February 3, 2011, by the Native Hawaiian Legal Corporation more
than a year before Cornelio arrived at SCC or RRCC, and does not
allege a denial of access to the courts.

See id., Doc. No. 1.

Rather, Davis asserts violations of the Free Exercise Clause of
the First Amendment; the Equal Protection Clause of the
Fourteenth Amendment; the Religious Land Use and
Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc-1 et
8

seq. (“RLUIPA”); article 1, sections 4 and 5, and article XII,
section 7 of the Hawaii constitution; and Hawaii Revised Statutes
§§ 1-1 603-21.9(1, 6) and 603-2.

These claims stem from RRCC and

SCC prison officials’ alleged failure to allow Hawaiian inmates
to participate in a yearly Makahiki celebration, beginning in
2009.

See Civ. No. 11-00144 LEK/BMK, Compl., Doc. No. 1-2; Am.

Compl., Doc. No. 42; Am. Compl. Doc. No. 146; Supplemental Am.
Compl., Doc. No. 146.

Davis provides no support for Cornelio’s

claims that there was a state-created impediment to his pursuing
relief in the state or federal courts.
Even if Davis had involved the denial of access to the
courts, which the pleadings in that case do not indicate, any
ruling on that issue could not have given Cornelio more remedies
or additional access relevant to the present action.

Cornelio

was actively pursuing his rights on direct appeal in the Hawaii
state courts, commenced and litigated another federal civil
rights action (discussed below), and litigated his 2013 Rule 40
Petition, all while Davis proceeded in this court.

See

Christopher v. Harbury, 536 U.S. 403, 416 2002); Nev. Dept. of
Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011).

Davis does

not support Cornelio’s claim that he was impeded from timely
filing a petition in the state or federal court before July 25,
2015.

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Second, Cornelio fails to explain how a state
impediment prevented him from responding to the ICA’s November
22, 2011, Notice regarding due dates for his jurisdictional
statement and opening brief.

See Doc. No. 9-2, PageID #49.

Cornelio was still incarcerated at MCCC, and both documents were
due before he was transferred to HCF.

Cornelio’s transfer to HCF

on February 7, 2012, could not have affected his ability to
timely file his jurisdictional statement or opening brief, or
seek an extension of time to do so.

Cornelio also fails to

explain why he never filed a notice of change of address when he
was transferred to HCF, SCC, or RRCC.
Third, Cornelio commenced a prisoner civil rights
action in this court on February 3, 2012, before his transfer to
HCF.

See Cornelio v. Hirano, Civ. No. 12-00072 LEK/RLP (D. Haw.

Feb. 3, 2012).

On February 13, 2012, the case’s initiating

documents, sent to Cornelio at MCCC, were returned.
Nos. 5 & 6.

Id., Doc.

After ascertaining that Cornelio had been

transferred to HCF, the court updated his address and resent all
documents to him there.

Between March 5 and June 26, 2012,

Cornelio submitted seven documents in Civ. No. 12-00072 while at
HCF, including in forma pauperis applications, amended
complaints, motions, and letters.
15, 16, & 18.

See Doc. Nos. 7, 10, 12, 13,

These filings clearly contradict Cornelio’s

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argument that there were state impediments preventing him from
prosecuting his state appeal or pursuing his rights.
Fourth, Cornelio says he was transferred to SCC on June
27, 2013, but fails to explain why he again failed to submit a
notice of change of address with either the state or federal
court.

On August 30, 2012, after Cornelio had failed to file an

amended complaint in response to this court’s July 10, 2012,
Order Dismissing Second Amended Complaint, Doc. No. 21, the court
entered judgment against Cornelio.

Doc. No. 23.

On September

20, 2012, however, having somehow received notice of the entry of
judgment, Cornelio moved to alter or amend the judgment.
No. 24.

Doc.

Because Cornelio’s Motion’s return address showed that

he was incarcerated at SCC in Arizona, the court updated his
address, granted his motion, and vacated the judgment.

See Doc.

Nos. 24-26.
Between September 20, 2012, while he was in Arizona,
and July 8, 2013, when he returned to HCF,4 Cornelio submitted
eight documents and effected service on Defendants, all while he
remained incarcerated at SCC or RRCC.

See Doc. Nos. 24, 25, 27,

28, 30, 34-37, 41-42, 45, 46, 52.
Based on this record, it is clear that Cornelio had the
ability to respond to the ICA’s scheduling orders while at MCCC.

4

His reply memorandum filed on July 8, 2013, in support of
his motion to file an amended complaint, listed HCF as his return
address. See Doc. No. 52-2.
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He failed to file notices of change of address with either the
ICA or this court at any time.

He clearly was not impeded from

prosecuting Civ. No. 12-00072 while at HCF, SCC, or RRCC.

In

fact, Cornelio’s diligence in prosecuting Civ. No. 12-00072,
despite his transfers and segregation, only highlights his
consistent failure to update the state and federal courts of his
whereabouts, his lack of diligence in prosecuting his direct
appeal or otherwise communicating with the ICA, his failure to
fully exhaust his claims in state court, and his failure to file
a timely habeas petition in this court.

Most important, Civ. No.

12-00072 shows that Cornelio was not impeded by state action from
pursuing his rights in state or federal court.

Similarly, these

factors show that Cornelio was not (1) subject to extraordinary
circumstances preventing his filing this Petition, and (2)
diligently pursuing his rights.

Cornelio is not entitled to

statutory tolling under 28 U.S.C. § 2244(d)(1)(B), or equitable
tolling.
B.

28 U.S.C. § 2244(d)(2)
Finally, because Cornelio’s July 25, 2013 Rule 40

Petition was filed after the AEDPA statute of limitations had
expired, it did not revive the statute of limitation.

See Pace,

544 U.S. at 412-16 (stating that a state post-conviction petition
that runs afoul of the statute of limitation is not “properly
filed” for purposes of 28 U.S.C. § 2244(d)(2)); Ferguson v.

12

Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jimenez v. Rice,
276 F.3d 478, 482 (9th Cir. 2001).

Cornelio’s 2013 Rule 40

Petition did not toll the statute of limitation and its filing is
immaterial to this analysis.
V. CONCLUSION
Cornelio’s transfers and segregated status did not
create an impediment to the timely filing of his federal Petition
and do not support a finding of extraordinary circumstances.
Cornelio’s actions in Civ. No. 12-00072 LEK/RLP, show that he had
the ability to pursue his rights, but failed to do so.
is not entitled to statutory or equitable tolling.

Cornelio

The Petition

is DISMISSED with prejudice as time-barred.
A certificate of appealability is DENIED because
Cornelio 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, June 22, 2015.

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

Cornelio v. Espinda, Civ. No. 15-00058 SOM/BMK; psa habeas 2015 Cornelio 15-58 (sol);
J:\PSA Draft Ords\SOM\Cornelio 15-58 SOM (sol).wpd

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