Ruh v. Hawaii, State of et al

Filing 13

ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF APPEALABILITY. Signed by JUDGE LESLIE E. KOBAYASHI on 05/09/2016. Petition is DISMISSED with prejudice for failing to state a cognizable claim for relief under 28 U.S.C. § 2254. A certificate of appealability is DENIED. The Clerk of Court shall enter judgment and close the file (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notif ications 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
RICHARD M. RUH,
#A0209217,
Petitioner,
vs.
STATE OF HAWAII, et al.,
Respondents.
________________________

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CIV. NO. 16-00034 LEK/RLP
ORDER DISMISSING PETITION
AND DENYING CERTIFICATE
OF APPEALABILITY

ORDER DISMISSING PETITION AND DENYING
CERTIFICATE OF APPEALABILITY
I.

INTRODUCTION

Before the court is pro se petitioner Richard M.
Ruh’s petition for writ of habeas corpus (“Petition”).
Pet., Doc. No. 1.

Petitioner challenges the Hawaii

Paroling Authority’s (“HPA”) allegedly illegal
calculation of his maximum consecutive terms after it
revoked his parole in 2008, in State v. Ruh, Cr. No.
93-0173(2), and State v. Ruh, Cr. No. 94(0092(1).
The court ordered Respondent and Petitioner to
address the procedural issues present in the Petition,
particularly its apparent time-bar.

Doc. No. 7.

Respondent argues the Petition must be dismissed as

time-barred pursuant to 28 U.S.C. § 2244(d), and that
Ground Six is unexhausted.

Prelim. Answer, Doc. No. 8.

Petitioner asserts that he is entitled to equitable
tolling of the statute and that the Petition is not
procedurally barred.

See Reply, Doc. Nos. 9-11.

Because Petitioner fails to state a cognizable
federal claim for relief under 28 U.S.C. § 2254, the
Petition is DISMISSED with prejudice.

The court need

not address whether equitable tolling applies to render
Petitioner’s claims timely.

Any pending motions or

request for a certificate of appealability are DENIED.
II.

BACKGROUND

On February 17, 1994, the Circuit Court of the
Second Circuit, State of Hawaii (“circuit court”),
sentenced Petitioner to seven concurrent twenty-year
terms of imprisonment on his conviction for seven Class
A felonies for sexual assault in the first degree in
Cr. No. 93-0173(2).

See App. A, Doc. No. 8-1; see also

Hawaii Revised Statutes (“HRS”) § 707-730(2) (defining
sexual assault in the first degree as a Class A

2

felony), and § 706-659.1
On May 25, 1995, after a minimum term hearing, the
Hawaii Paroling Authority (“HPA”) set Petitioner’s
minimum term at eight years for each term of
imprisonment, pursuant to HRS § 706-669(1),2 with a
minimum term expiration date of April 11, 2001.

App.

B, Doc. No. 8-2.
On May 3, 1995, the circuit court sentenced
Petitioner to a five year term for escape in the second
degree in Cr. No. 94-0092(1), to run consecutively to

1

Section 706-659 states in pertinent part:

a person who has been convicted of a class A felony
. . . shall be sentenced to an indeterminate term of
imprisonment of twenty years without the possibility of
suspension of sentence or probation. The minimum length
of imprisonment shall be determined by the Hawaii
paroling authority in accordance with section 706-669.
(emphasis added).
2

Section 706-669(1) states:

(1) When a person has been sentenced to an
indeterminate or an extended term of imprisonment, the
Hawaii paroling authority shall, as soon as practicable
but no later than six months after commitment to the
custody of the director of the department of [public
safety] hold a hearing, and on the basis of the hearing
make an order fixing the minimum term of imprisonment
to be served before the prisoner shall become eligible
for parole.
3

the seven concurrent twenty-year terms in Cr. No.
93-0173(2).

App. C, Doc. No. 8-3.

Petitioner’s

combined maximum term for both criminal proceedings is
therefore twenty-five years.
On March 28, 1996, the HPA set Petitioner’s minimum
term in Cr. No. 94-0092(1) at three years, to begin
when his minimum term expired in Cr. No. 93-0173(2),
and expire three years later, on April 10, 2004.

This

date represents the aggregated minimum term for both
criminal proceedings, and the earliest date that
Petitioner was eligible for release on parole.

App. D,

Doc. No. 8-4.
On June 19, 2007, three years after his aggregated
minimum terms expired, the HPA granted Petitioner
parole, to commence on June 26, 2007.
1-5 (“HPA Order”).

App. E, Doc. No.

The HPA Order explicitly informed

Petitioner that his full “Term of Parole” in Cr. No.
93-0173(2) would expire on December 11, 2013, and his
full Term of Parole in Cr. No. 94-0092(1) would expire
on June 26, 2018.

Id.

The HPA notified Petitioner

that, if he violated the terms and conditions of
4

parole, he “may be required to serve the remainder of
his/her term.”

Id., PageID #185.

On April 11, 2008, Petitioner pled guilty to three
separate, serious violations of the terms and
conditions of his parole at a revocation hearing.

On

April 17, 2008, the HPA revoked Petitioner’s parole,
and recommitted him for the balance of his maximum
terms in Cr. Nos. 93-0173(2) and 94-0092(1), as imposed
by the circuit court.

App. F, Doc. No. 8-6.

On January 13, 2012, Petitioner, proceeding pro se,
signed a petition for post-conviction relief pursuant
to Rule 40 of the Hawaii Rules of Penal Procedure
(“HRPP”).

App. G, Doc. No. 8-7 (S.P.P. No. 12-1-

0003(2)) (“Rule 40 Petition”).3

Petitioner did not

challenge the revocation of his parole or HPA decision
to commit him for the remainder of his maximum terms.
Rather, he alleged that his continued imprisonment
until his original maximum terms was incorrect because
3

The Rule 40 Petition is deemed filed on January 13, 2012,
the date it was mailed. See Campbell v. Henry, 614 F.3d 1056,
1059 (9th Cir. 2010) (holding inmate’s petition is deemed filed
when handed to prison officials for mailing); Setala v. J.C.
Penney Co., 97 Haw. 484, 40 P.3d 886 (2002) (same).
5

his minimum terms were “fully served and expired.”
Id., PageID #198.

Petitioner theorized that, because

his minimum term in Cr. No. 93-0173(2) expired on
April 11, 2001, and his consecutive minimum term in
Cr. No. 94-0092(1) began on that date, meaning his
twenty-year terms in Cr. No. 93-0173(2) were
effectively discharged on April 11, 2001.

Under this

creative theory, Petitioner alleges his five-year
sentence in Cr. No. 94-0092(1) was therefore completed
on or about April 12, 2006.4

Id.

The State disputed this interpretation of his terms
of sentence, explaining that the trial court sentenced
him to seven concurrent twenty-year terms in Cr. No.
93-0173(2), and a five-year consecutive terms in
Cr. No. 94-0092(1).

App. H, Doc. No. 8-8.

Under

Hawaii law, minimum terms, aggregated or not, represent
the earliest possible date that an inmate can be
released, not the expiration of his maximum terms of
imprisonment.

Id. (citing HRS §§ 353-62, 353-65, 353-

4

Petitioner fails to explain why he never raised this issue
while he was incarcerated for more than a year beyond this date,
until his release on June 26, 2007.
6

66, 706-668, 706-670, and Hawaii Administrative Rule
§ 23-700-51) (discussing a trial court’s authority to
impose consecutive maximum terms and the HPA’s
authority to set minimum terms, grant, discharge, or
revoke paroles, and recommit inmates to serve maximum
terms).
On November 5, 2012, the circuit court denied
Petitioner’s Rule 40 Petition without a hearing as
“patently frivolous and without a trace of support in
the record and from other evidence submitted in support
of the Petition.”

App. J, Doc. No. 8-10.

Petitioner appealed.

App. L, Doc. No. 8-11.

On

April 10, 2015, the Hawaii Intermediate Court of
Appeals (“ICA”) affirmed the circuit court.

Doc. No.

1-17; see also Ruh v. State, 2015 WL 1609568 (Haw. App.
2015).

On August 10, 2015, the Hawaii Supreme Court

rejected certiorari.

App. R, Doc. No. 8-18.

On January 23, 2016, Petitioner signed and mailed
the present Petition; it was received and filed on
January 27, 2016.

Petitioner raises five grounds for

relief under 28 U.S.C. § 2254, reiterating his
7

arguments in his Rule 40 Petition, alleging violations
of the Ex Post Facto Clause, the Eighth and Fourteenth
Amendments, and Hawaii state law.

See Pet., Doc. No.

1, PageID #10-31 (Grounds One through Five).
Petitioner also raises a civil rights claim under 42
U.S.C. §§ 1983, 1985, and 1986, alleging inadequate or
illegal law library policies at the Saguaro
Correctional Center (“SCC”), where he is incarcerated.
Id., PageID #32-37.
III.

JURISDICTION

Under the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), an application for a writ of
habeas corpus by a person in custody under a judgment
of a state court can be reviewed and granted only for
violations of the Constitution or laws of the United
States.

28 U.S.C. § 2254(a); Swarthout v. Cooke, 562

U.S. 216, 219 (2011) (per curiam).

Petitioner was

convicted in Hawaii, asserts violations of the United
States Constitution, and challenges actions that arise
from a parole hearing held in the City and County of
Honolulu.

Jurisdiction lies in this court.
8

28 U.S.C.

§ 2254(a); 28 U.S.C.§ 2241(d).
IV.

LEGAL STANDARDS

A petition for writ of habeas corpus under 28
U.S.C. § 2254(d) will not be granted unless the
petitioner can show that the state court’s adjudication
of his claim: (1) resulted in a decision that was
contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by
the Supreme Court of the United States; or (2) resulted
in a decision that “was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.”

28 U.S.C.

§ 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71
(2003); Williams v. Taylor, 529 U.S. 362, 412-413 375
n.7 (2000); Estelle v. McGuire, 502 U.S. 62, 68 (1991).
V.

ANALYSIS

“If it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled
to relief in the district court, the judge must dismiss
the petition and direct the clerk to notify the
petitioner.”

Rule 4 of the Rules Governing Section
9

2254 Cases in the United States District Court.
A.

Petitioner’s Claims
Petitioner emphasizes that he challenges neither

his original convictions, sentences, revocation of
parole, nor subsequent recommitment to serve his
maximum terms.
418.

See Reply, Doc. No. 9, PageID #416,

Petitioner instead challenges the HPA’s

“computation of his sentence” in 2008, and its “ability
to perform this computation.”

Id. at 418.

He states

that his claims involve the HPA’s calculation of his
maximum terms, which he alleges was done “illegally by
tolling the actual sentence’s [sic].”

Id. at 419

(emphasis in original).
B.

No Constitutional Right to Parole
First, a prisoner has “no constitutional or

inherent right . . . to be conditionally released
before the expiration of a valid sentence.”

Greenholtz

v. Inmates of the Nebraska Penal & Corr. Complex, 442
U.S. 1, 7 (1979); Swarthout, 562 U.S. at 220.
Additionally, “the States are under no duty to offer
parole to their prisoners.”

Swarthout, 562 U.S. at
10

220.

A valid conviction, with all its procedural

safeguards, generally extinguishes any federal liberty
right to freedom from incarceration.

Greenholtz, 442

U.S. at 7; see also Meachum v. Fano, 427 U.S. 215, 224
(1976).

Petitioner concedes that the circuit court

sentenced him to seven twenty-year terms in Cr. No.
93-0173(2), and a five-year consecutive term in Cr. No.
94-0092(1).

He has no right under the United States

Constitution to release before the expiration of these
maximum term sentences.
C.

No State-created Liberty Interest in Parole
Second, the right to release prior to the

expiration of a maximum sentence can exist if State law
creates a liberty interest in such a right.

Swarthout,

562 U.S. at 220; Greenholtz, 442 U.S. at 7.

It is long

settled that Hawaii’s parole statutes and State law do
not create a liberty interest in parole or release
prior to the expiration of a maximum term.

See e.g.,

Mujahid v. Apao, 795 F. Supp. 1020, 1024 (D. Haw.
1992)(“A proper application of Greenholtz requires the
court to conclude that the Hawaii parole statute does
11

not create a liberty interest protected by the Due
Process Clause.”); Wideman v. Thomas, 2014 WL 4407708,
at *9 (D. Haw. Sept. 5, 2014) (same); Kula v. Malani,
2007 WL 2874839, at *3 (D. Haw. Sept. 27, 2007)(same).
Petitioner has no protected liberty interest under
State law.
D.

Petitioner Fails to Identify What Due Process He
Was Allegedly Denied
Third, even if Hawaii state law created such a

liberty interest, which it does not, Petitioner does
not identify what procedures he was denied.

Due

process requires only minimal procedures when parole is
denied -- an opportunity to be heard and a statement of
the reasons for denial.

Swarthout, 562 U.S. at 220;

Greenholtz, 442 U.S. at 16.

Nothing more.

Petitioner

has no federal right to parole, or state-created
liberty interest in due process before the denial of
parole.

Petitioner fails to allege that he petitioned

for and been denied a parole hearing since his parole
revocation.

And, he explicitly does not contest the

procedures during his parole revocation hearing.

12

He

has not and cannot identify what due process he has
been denied.
E.

No Ex Post Facto or Eighth Amendment Claims
Fourth, Petitioner does not explain his reliance on

the Eighth Amendment or the Ex Post Facto Clause.
“Generally, so long as the sentence imposed does not
exceed the statutory maximum, it will not be overturned
on eighth amendment grounds.”

Belgarde v. Montana, 123

F.3d 1210, 1215 (9th Cir. 1997); see also Durr v.
Davis, 2016 WL 1553886, at *2 (C.D. Cal. Mar. 7, 2016),
report and recommendation adopted, 2016 WL 1532225
(C.D. Cal. Apr. 13, 2016).

Petitioner does not argue

that his maximum sentences exceed the statutory maximum
for his crimes, or that the HPA’s determination exceeds
the sentences originally imposed and authorized by
statute.

See HRS § 706-659.

Petitioner also fails to explain how the Ex Post
Facto Clause applies to his claims.
enact an ex post facto law.

States may not

U.S. Const., Art. I, § 10,

cl. 1; Garner v. Jones, 529 U.S. 244, 249,

(2000).

That is, the Ex Post Facto Clause bars laws that
13

retroactively increase the punishment for a crime after
its commission.

Id. at 250.

“Retroactive changes in

laws governing parole of prisoners, in some instances,
may be violative of this precept.”

Id.; see also

Gilman v. Brown, 814 F.3d 1007, 1018 (9th Cir. 2016)
(holding no ex post facto violation regarding newly
enacted California law regarding inmate credits).
When “reviewing decisions of state parole
authorities for potential Ex Post Facto Clause issues,
the question is not whether “‘discretion has been
changed in its exercise’ by changes in parole
procedures, but whether discretion ‘will not be
exercised at all.’”

Gilman, 814 F.3d at 1018, (quoting

Garner, 529 U.S. at 254).
Petitioner does not identify, and the court does
not discern any changes to Hawaii’s parole procedures
since his conviction, retroactive or otherwise.

Nor

does he show that the HPA failed to exercise discretion
here.

In Hawaii, “[p]aroles may be granted by the

Hawaii Paroling Authority at any time after the
prisoner has served the minimum term of imprisonment
14

fixed according to law[.]”

HRS § 353–68(a).

In

particular, Hawaii law states:
No parole shall be granted unless it appears to
the Hawaii Paroling Authority that there is a
reasonable probability that the prisoner
concerned will live and remain at liberty
without violating the law and that the
prisoner’s release is not incompatible with the
welfare and safety of society.
HRS § 353–69.

The HPA’s revocation of Petitioner’s

parole for three serious parole violations, after a
revocation hearing was held (to which no objection is
made), supports a careful exercise of HPA discretion to
protect the “welfare and safety of society.”
F.

Id.

Petitioner Raises Only State Law Claims
The true crux of Petitioner’s claims is that the

HPA, and, on collateral review, the state courts, did
not properly apply Hawaii state law when they
“computed” his maximum terms.

The HPA neither

recomputed Petitioner’s maximum terms nor changed them.
It simply informed Petitioner that he was subject to
serve the maximum terms already imposed by the circuit
court and later upheld on appeal.

15

Moreover, “‘federal habeas corpus relief does not
lie for errors of state law.’”

Swarthout, 562 U.S.

216, 219 (quoting Estelle, 502 U.S. at 67); Miller v.
Ore. Bd. Of Parole and Post Prison Supervision, 642
F.3d 711, 716 (9th Cir. 2011) (“[T]he responsibility
for assuring that the constitutionally adequate
procedures governing [the state’s] parole system are
properly applied rests with [the state] courts, and is
no part of the Ninth Circuit’s business.”); Roberts v.
Hartley, 640 F.3d 1042, 1047 (9th Cir. 2011) (holding
that a federal habeas court is not authorized to
reevaluate a state’s application of its own rules to
determine parole eligibility).
G.

Ground Six is Not Cognizable on Federal Habeas
Review
Finally, Petitioner admits that his claims in

Ground Six arise under 42 U.S.C. §§ 1983, 1985, and
1986, and allege a conditions of confinement claim
rather than a challenge to his conviction or sentence.
He apparently does so as support for his argument that
his claims should be equitably tolled.

16

The court need

not reach that argument, however.

And, because success

on these claims cannot “necessarily spell speedier
release,” because Petitioner has no right to parole
before his maximum sentence, these claims are not
properly brought in a habeas petition.

Wilkinson v.

Dotson, 544 U.S. 74, 82 (2005); see also Skinner v.
Switzer, 562 U.S. 521, 535 n.13 (2011) (stating such
claims “may be brought, if at all, under § 1983”
(quoting Wilkinson, 544 U.S. at 82).

Petitioner is not

precluded from initiating a separate civil rights
lawsuit on this claim, if he chooses
Plaintiff’s claims are not cognizable under federal
habeas jurisdiction and are DISMISSED WITH PREJUDICE.
VI.

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2254
Cases requires a district court to rule on whether a
petitioner is entitled to a certificate of
appealability in the same order in which the petition
is denied.

A certificate of appealability may issue

only when a Petitioner has made “a substantial showing
of the denial of a constitutional right.”
17

28 U.S.C.

§ 2253(c)(2).

To satisfy this standard when the Court

has dismissed a § 2254 petition (or claims within) on
procedural grounds, a Petitioner must show that
reasonable jurists would find debatable (1) whether the
court was correct in its procedural ruling, and (2)
whether the motion states a valid claim of the denial
of a constitutional right.
473, 484 (2000).

Slack v. McDaniel, 529 U.S.

When the Court denies a § 2254

petition on the merits, a Petitioner must show that
reasonable jurists would find the court’s decision on
the merits to be debatable or wrong.

Id.

Petitioner

has not made any showing, let alone a substantial one,
of the denial of a constitutional right.
§ 2253(c)(2).

28 U.S.C.

Reasonable jurists would not find this

assessment of Petitioner’s claims debatable or wrong.
Slack, 529 U.S. at 483.

Accordingly, the court

declines to issue a certificate of appealability.
VII. CONCLUSION
The Petition is DISMISSED with prejudice for
failing to state a cognizable claim for relief under 28
U.S.C. § 2254.

A certificate of appealability is
18

DENIED.

The Clerk of Court shall enter judgment and

close the file.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, May 9, 2016.

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

Ruh v. Espinda, et al., 1:16-cv-00034 LEK/RLP; Habeas 2016 Ruh 16-34 lek (ftsc)

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