Cornelio v. Espinda

Filing 7

PRELIMINARY ORDER TO SHOW CAUSE AND ANSWER - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 4/17/2015. "Respondent is ORDERED, pursuant to Rule 5 of the Rules Governing Section 2254 Cases in the United States District Court s, to file a Preliminary Answer to the Petition on or before MAY 22, 2015." " Cornelio SHALL submit a Reply to the Preliminary Answer on or before JUNE 12, 2015, showing cause why the Petition should not be dismissed as time-barr ed." (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). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

WILLIAM A. CORNELIO, III,
#A0192661,

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

CIV. NO. 15-000058 SOM/BMK
PRELIMINARY ORDER TO SHOW
CAUSE AND ANSWER

PRELIMINARY ORDER TO SHOW CAUSE AND ANSWER
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 his Fourth

Amended Judgment of Conviction and Sentence, entered in 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. 94-0-000590, avail. at:
http://hoohiki1.courts.state.hi.us/jud/Hoohiki/main.htm (last
visited April 15, 2015).

Cornelio appealed the Fourth Amended

Judgment on September 23, 2011.

See Cornelio v. State, 2012 WL

1232934, *1 (Haw. App. Apr. 12, 2012) (CAAP 11-000701).

On April

12, 2012, the Hawaii Intermediate Court of Appeals (“ICA”)
dismissed Cornelio’s appeal for failure to prosecute.

Id.

There

is no indication in the Petition or publicly available records
that Cornelio sought further review of the ICA’s decision with
the Hawaii Supreme Court.
More than a year later, on or about July 25, 2013,
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 id. PageID #17; see

also Cornelio v. State, SPP No. 13-1-0007(2) (Haw. 2d Cir. Ct.
2013).

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

Rule 40 Petition on August 29, 2014 (No. CAAP-13-0005273).

The

Hawaii Supreme Court denied certiorari on January 25, 2015 (No.
SCWC-13-0005273).

Cornelio filed the present Petition on March

2, 2015.1
Cornelio raises three grounds for relief: (1) illegally
imposed “separate” sentences for each conviction, “without the
authorization of the jury”; (2) double jeopardy, for conviction
of five firearms offenses when there was only one firearm
incident; and (3) cruel and unusual punishment, because his
sentence is allegedly disproportionately harsh compared to other
sentences imposed for similar crimes.
#6, #8, #9.

Pet. Doc. No. 1, PageID

Cornelio asserts he has raised and exhausted these

1

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.
2

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 the Anti-Terrorism and Effective Death
Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d).

Under the statute, a

one-year limitation period applies to applications for writs of
habeas corpus, subject to certain tolling conditions.

See 28

U.S.C. § 2244(d)(2) (tolling the statute while a “properly filed”
state post-conviction petition is pending); Duncan v. Walker, 533
U.S. 167, 181-82 (2001) (limiting statutory tolling under
2244(d)(2) to state, not federal, petitions).
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).
Absent any applicable tolling provisions, the statute
of limitation began to run, at the latest, thirty days after the
3

ICA dismissed Cornelio’s appeal of the Fourth Amended Judgment,
for failure to prosecute.

See 28 U.S.C. § 2244(d)(1)(A) (stating

one-year statute of limitation generally runs from “the date on
which the judgment became final by conclusion of direct review or
the expiration of the time for seeking such review”); 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, the day after
the time to seek review with the Hawaii Supreme Court passed, and
expired on or about May 13, 2013.
An application for state post-conviction relief does
not revive the statute of limitation when it is filed after the
AEDPA statute of limitations has expired.

And a state petition

for post-conviction relief that runs afoul of the statute of
limitation is not “properly filed” for purposes of 28 U.S.C.
§ 2244(d)(2).

See Pace, 544 U.S. at 412-16; Ferguson v.

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

Because Cornelio’s 2013 Rule

40 Petition was filed seventy-four days after the Fourth Amended
Judgment became final, it cannot serve to toll the statute of
limitation.
4

II. CONCLUSION
Cornelio is NOTIFIED that the court is considering
dismissing the Petition as time-barred.

See Herbst v. Cook, 260

F.3d 1039, 1042 & n.3, 1043 (9th Cir. 2001) (discussing the
district court’s authority to raise on its own the issue of
statute of limitation and requiring the court to provide
petitioner with adequate notice and an opportunity to respond
before dismissing the petition on statute of limitation grounds).
Respondent is ORDERED, pursuant to Rule 5 of the Rules
Governing Section 2254 Cases in the United States District
Courts, to file a Preliminary Answer to the Petition on or before
MAY 22, 2015.

The Preliminary Answer should address how the

statute of limitation applies to Cornelio’s Petition and whether
there were any impediments preventing Cornelio from timely filing
the Petition.

The Preliminary Answer must comply with Rule 5 of

the Rules Governing Section 2254 Cases and with Local Rule LR7.5,
and may not exceed the specified number of pages or words,
excepting exhibits, without good cause shown and permission from
the court.

Respondent shall not file duplicate exhibits that may

be part of the record in Cornelio’s state criminal case or postconviction proceedings.
Cornelio SHALL submit a Reply to the Preliminary Answer
on or before JUNE 12, 2015, showing cause why the Petition should
not be dismissed as time-barred.

It is Cornelio’s burden to
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demonstrate that he is entitled to equitable tolling.
v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002).

See Smith

After receipt of

the parties’ memoranda, the court will determine whether this
action should proceed on its merits after further briefing or be
dismissed as time-barred.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 17, 2015.

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

cc:

Petitioner (Order)
Respondent (Petition & Order)
John D. Kim, Prosecuting Attorney, County of Maui
(Petition & Order)
Douglas Chin, Attorney General, State of Hawaii
(Petition & Order)

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

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