Brown v. Taylor

Filing 18

ORDER:(1) ADOPTING AMENDED FINDINGS AND RECOMMENDATION TO DENY HERBERT BROWNS 28 U.S.C. § 2254 PETITION; AND (2) DENYING A CERTIFICATE OF APPEALABILITY.The Court ADOPTS the Amended F&R to deny Brown's § 2254 Petition, DENIES Brown' ;s § 2254 petition, and DENIES a certificate of appealability. The Clerk of Court is directed to close this case. Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 8/25/17. (cib, )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
HERBERT BROWN,

CIV. NO. 16-00649 JMS-RLP

Petitioner,
vs.
JOSEPH TAYLOR,
Respondent.

ORDER: (1) ADOPTING
AMENDED FINDINGS AND
RECOMMENDATION TO DENY
HERBERT BROWN’S 28 U.S.C.
§ 2254 PETITION; AND
(2) DENYING A CERTIFICATE
OF APPEALABILITY

ORDER: (1) ADOPTING AMENDED FINDINGS AND
RECOMMENDATION TO DENY HERBERT BROWN’S 28 U.S.C.
§ 2254 PETITION; AND (2) DENYING A CERTIFICATE OF
APPEALABILITY
I. INTRODUCTION
Before the court are Petitioner Herbert Brown’s (“Brown”)
Objections, ECF Nos. 15, 15-1, 1 to Magistrate Judge Richard L. Puglisi’s June 13,
2017 Amended Findings and Recommendation (“Amended F&R”) to Deny
Brown’s Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person
///
///

1

Brown included argument in both his Objections, ECF No. 15, and the transmittal letter
accompanying his Objections, ECF No. 15-1. The court considers the objections raised in both
documents.

in State Custody (“§ 2254 Petition”), 2 ECF No. 14; and the Honolulu Department
of the Prosecuting Attorney’s (the “Government”) Response, ECF No. 17. For the
reasons discussed below, the court ADOPTS the Amended F&R, DENIES the
§ 2254 Petition, and DENIES a certificate of appealability.
II. BACKGROUND
On July 23, 2004, Brown was convicted in the Hawaii Circuit Court
of the First Circuit (“Hawaii Circuit Court”) of two counts of third-degree sexual
assault under Hawaii Revised Statutes (“HRS”) § 707-732(1)(b), 3 and sentenced to
two consecutive ten-year terms of imprisonment under Hawaii’s extended-term
sentencing scheme. See State v. Brown, 2005 WL 2338855, at 1 (Haw. Sept. 26,
2005) (unpublished disposition). Brown’s conviction and sentence were affirmed

2

Brown’s § 2254 Petition includes both the petition, ECF No. 1, and supporting
memorandum, ECF No. 1-1. For clarity, when citing the § 2254 Petition, the court uses ECF
PageID numbers. On June 9, 2017, Magistrate Judge Puglisi issued his Findings and
Recommendation (“F&R”) to deny Brown’s § 2254 Petition. ECF No. 13. The F&R was
amended on June 13, 2017, solely to include a discussion on a certificate of appealability. See
Am. F&R at 1 n.2.
3

HRS § 707-732(1)(b):
(1) A person commits the offense of sexual assault in the third
degree if:
...
(b) The person knowingly subjects to sexual contact another
person who is less than fourteen years old or causes such a person
to have sexual contact with the person.

2

by the Hawaii Supreme Court on September 26, 2005. 4 Id. at 2. Brown filed a
petition for writ of habeas corpus in federal court, arguing that his extended-term
sentencing violated the Sixth Amendment and Apprendi v. New Jersey, 530 U.S.
466 (2000). See Brown v. White, 2007 WL 1977277, at * 1 (D. Haw. July 3,
2007). The petition was granted and the district court ordered that Brown be resentenced. Id.
In 2007, the Hawaii state legislature amended the extended-term
sentencing scheme, HRS §§ 706-661, -662, & -664, to comply with Apprendi. See
State v. Jess, 184 P.3d 133, 140 n.3 (Haw. 2008) (discussing legislative history).
Thereafter, on October 3, 2007, the state prosecutor filed a second motion for an
extended-term of imprisonment that set forth aggravating circumstances. Gov’t
Ex. “H,” ECF No. 12-9. On November 3, 2009, the Hawaii Supreme Court denied
a petition for writ of mandamus and/or prohibition by which Brown sought an
order vacating the denials of motions he filed challenging both the Hawaii Circuit
Court’s jurisdiction and the constitutionality of the amended extended-term
sentencing scheme. Pet. Ex “A,” ECF No. 1-2. The court found that Brown
“fail[ed] to demonstrate a clear and indisputable right to relief.” Id. at 1.
4

Brown argued on appeal that he was denied a fair trial because: (1) the trial court
admitted evidence of a prior conviction for robbery in the second degree; (2) there was
insufficient evidence to prove that Brown touched the complainants’ vaginas as charged in the
indictment; and (3) Hawaii’s extended-term sentencing scheme violated his Sixth Amendment
right to a trial by jury. State v. Brown, 2005 WL 2338855, at *1 (Haw. Sept. 26, 2005)
(unpublished disposition).
3

On May 8, 2012, the Hawaii Circuit Court held an extended-term
eligibility trial with a new jury, which found that Brown was a persistent and
multiple offender under the amended HRS § 706-662(1) and (2), and that an
extended sentence was necessary to protect the public. Gov’t Ex. “E” at 75-79,
ECF No. 12-6. A new judgment was issued on August 3, 2012, re-sentencing
Brown to the same sentence as he originally received -- two consecutive ten-year
terms of imprisonment. State v. Brown, 2015 WL 5774713, at *1 (Haw. Ct. App.
Sept. 30, 2015). Brown’s subsequent appeal was denied by the Hawaii
Intermediate Court of Appeals (the “ICA”) on September 30, 2015.5 Id. at *4.
And on February 8, 2016, the Hawaii Supreme Court denied Brown’s application
for writ of certiorari. See State v. Brown, 2016 WL 509425, at *1 (Haw. Feb. 8,
2016).
On December 6, 2016, Brown filed the instant § 2254 Petition
asserting the following nine claims arising from both his original trial and
subsequent eligibility trial for an extended-term sentence: (1) ineffective assistance
of counsel; (2) the Hawaii Circuit Court improperly admitted evidence of his prior
5

On appeal, Brown argued that (1) because the extended-term sentencing scheme in
effect at the time of the offense was void ab initio, his first sentence should be viewed as an
ordinary-term sentence, making his second sentence harsher than his first, and therefore, the
Hawaii Circuit Court’s imposition of the second sentence violated his right to due process;
(2) the eligibility trial jury voir dire was insufficient, causing prejudicial error; and
(3) because his conviction from the first trial was allegedly void, it should not have been entered
as evidence in his eligibility trial. State v. Brown, 2015 WL 5774713, at *1-3 (Haw. Ct. App.
Sept. 30, 2015).
4

conviction; (3) his indictment, which charged him with touching the victims’
vaginas rather than their vulvae, provided insufficient notice of his charges; (4) he
should have been tried in family court; (5) Hawaii’s amended extended-term
sentencing scheme violates the Sixth Amendment; (6) the amended extended-term
sentencing scheme is an ex post facto law; (7) empaneling a second jury for the
eligibility trial violated double jeopardy; (8) the verdict form used at the eligibility
trial violated due process; and (9) HRS § 706-668.5(3)6 is “unconstitutionally
ambiguous.” Am. F&R at 5 (citing § 2254 Mem., ECF No. 1-1).
The Amended F&R found that for each of his claims, Brown failed to
establish a violation of the constitution, laws, or treaties of the United States. 7 Id.

6

HRS § 706-668.5(1) was amended in 2008 to clarify that “[m]ultiple terms of
imprisonment run concurrently unless the court orders or the statute mandates that the terms run
consecutively.” Subsection (3) requires that notice be provided to defendants serving “terms of
imprisonment imposed prior to June 18, 2008,” that (1) the “department of public safety may
recalculate the multiple terms of imprisonment imposed on the defendant; and [(2)] . . . the
defendant [has the] right to have the court review the defendant’s sentence.” Brown received a
letter dated August 6, 2015, from the Department of Public Safety, informing him that he was
identified as serving multiple terms of imprisonment imposed prior to June 18, 2008, and
providing the notice required by § 706-668.5(3). See Pet.’s Ex. “G,” ECF No. 1-8.
7

The Amended F&R first determined that even though Brown filed a prior habeas
petition, because he received a subsequent amended judgment, the instant § 2254 Petition is not a
second or successive petition. Am. F&R at 6 (citing Magwood v. Patterson, 561 U.S. 320 (2010)
and Wentzell v. Neven, 674 F.3d 1124, 1127 (9th Cir. 2012) (“[W]here a first habeas petition
results in an amended judgment, a subsequent petition is not successive, even if its claims could
have been raised in a prior petition or the petitioner effectively challenges an unamended
component of the judgment.”)). The Amended F&R also noted that although Brown failed to
raise some of his claims in state court before filing the instant § 2254 Petition, because the
Government failed to assert procedural default in its Answer, it waived that defense. Id. at 6 n.3.
Thus, the Amended F&R determined that it could address the merits of Brown’s claims. Id.

5

at 7-20. More specifically, the Amended F&R found that: (1) “Brown’s claim of
ineffective assistance of counsel is conclusory and without factual support” and
thus, Brown failed to establish “that he received ineffective assistance of counsel in
violation of the Sixth Amendment,” id. at 9; (2) “Brown has not shown that there
were impermissible purposes for admitting evidence of his prior conviction, or that
its admission rendered his trial fundamentally unfair” such that it would violate the
due process clause, id. at 11; (3) by “referencing the applicable statute
. . . the indictment provided fair notice to Mr. Brown of his charges under the Fifth
and Sixth Amendments,” id. at 13; (4) “Brown has not established that being tried
by the [Hawaii Circuit Court] violated . . . any [federal] law,” id. at 14;
(5) Hawaii’s amended [extended-term sentencing] scheme and Mr. Brown’s
second sentence comply with the Sixth Amendment as interpreted by Apprendi
[and therefore] Brown has not established that he is being held in state custody in
violation of the Sixth Amendment,” id. at 15; (6) “Brown was not disadvantaged
by the new sentencing scheme” and therefore its application at “Brown’s eligibility
trial did not violate the ex post facto provision,” id. at 17; (7) because “Brown’s
eligibility trial was a re-trial of sentencing enhancements, the Double Jeopardy
Clause does not apply,” id. at 17-18; (8) with respect to Brown’s claim that “the
verdict form finding him guilty of an extended sentence violated due process,” his
“argument and factual allegations are not supported by the record [and thus]
6

Brown has not established that he is being held in violation of due process,” id. at
18; and (9) HRS § “706-668.5 and its amendments do not apply to Mr. Brown’s
current sentence, which was imposed in 2012,” and therefore, “Brown has not
established that he is being held in custody by an unconstitutionally ambiguous
statute,” id. at 19. Thus, the Amended F&R recommended that the § 2254 Petition
be denied with prejudice, and that a certificate of appealability be denied. Id. at
20-21.
Brown filed the instant Objections on July 5, 2017, and the
Government filed its Response on July 11, 2017. ECF Nos. 15, 17.
III. STANDARD OF REVIEW
A.

Review of a Magistrate Judge’s Findings and Recommendations
When a party objects to a magistrate judge’s findings and

recommendations, the district court must review de novo those portions to which
the objections are made and “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673 (1980); United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (“[T]he
district judge must review the magistrate judge’s findings and recommendations de
novo if objection is made, but not otherwise.”). The district court reviews those

7

unobjected portions of a findings and recommendations for clear error. H. v. Dep’t
of Educ., 2016 WL 4522177, at *3 (D. Haw. Aug. 29, 2016).
Under a de novo standard, this court reviews “the matter anew, the
same as if it had not been heard before, and as if no decision previously had been
rendered.” Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006); United
States v. Silverman, 861 F.2d 571, 576 (9th Cir. 1988). The district court need not
hold a de novo hearing; however, it is the court’s obligation to arrive at its own
independent conclusion about those portions of the magistrate judge’s findings and
recommendations to which a party objects. United States v. Remsing, 874 F.2d
614, 618 (9th Cir. 1989).
B.

Review of § 2254 Habeas Corpus Petitions
A federal district court may consider a habeas petition from a state

prisoner “only on the ground that he is in custody in violation of the Constitution
or law or treaties of the United States.” 28 U.S.C. § 2254(a). A federal writ of
habeas corpus is not available for any alleged error in the application or
interpretation of state law. See Swarthout v. Cooke, 562 U.S. 216, 221 (2011) (per
curiam) (holding that it is of no federal concern whether a state law was correctly
applied); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202
F.3d 1146, 1149 (9th Cir. 2000).

8

Pursuant to the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), a district court may not grant habeas relief under § 2254 unless a state
court’s adjudication on the merits of a claim was (1) “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)(1)-(2); Williams v. Taylor, 529 U.S.
362, 412 (2000).
This AEDPA standard is highly deferential, requiring a petitioner to
show that “the state court’s ruling on the claim being presented in federal court
was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” White v. Wheeler, 136 S. Ct. 456, 460 (2015) (quoting Harrington
v. Richter, 562 U.S. 86, 103 (2011)). The court considers the “last reasoned
decision” by a state court addressing a particular issue. Miles v. Ryan, 713 F.3d
477, 486 (9th Cir. 2012). A summary denial by a state court is presumed to be a
denial on the merits of a petitioner’s claim. Stancle v. Clay, 692 F.3d 948, 957 &
n.3 (9th Cir. 2012). But where it is clear that a state court did not rule on the
merits of a claim, the district court must review that claim de novo. Stanley v.
Cullen, 633 F.3d 852, 860 (9th Cir. 2011).
9

Generally, a habeas petitioner must first exhaust his claims by
presenting them to the state’s highest court, either through direct appeal or
collateral proceedings, before a federal court will consider the merits of those
claims. See Section 2254(b)(1);8 Rose v. Lundy, 455 U.S. 509, 519 (1982). To
exhaust a claim, a petitioner must “reference specific provisions of the federal
constitution or cite to federal case law.” Robinson v. Schriro, 595 F.3d 1086, 1101
(9th Cir. 2010). Alternatively, a petition must have “cited to . . . state cases
involving the legal standard for a federal constitutional violation.” Johnson v.
Zenon, 88 F.3d 828, 830 (9th Cir. 1996). Neither “[t]he mere similarity between a
claim of state and federal error . . . [nor] general appeals to broad constitutional
principles, such as due process, . . . and the right to a fair trial, are []sufficient to
establish exhaustion.” Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999)
(citations omitted).
However, after de novo review, the court may dismiss unexhausted
and/or procedurally-defaulted claims that are plainly meritless. See 28 U.S.C.
8

Section 2254(b)(1) provides that:
An application for writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted unless it appears that -(A) the applicant has exhausted the remedies available in the courts
of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to
protect the rights of the applicant.

10

§ 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust the remedies
available in the courts of the State.”); see also Cassett v. Stewart, 406 F.3d 614,
623-24 (9th Cir. 2005) (“[A] federal court may deny an unexhausted petition on
the merits only when it is perfectly clear that the applicant does not raise even a
colorable federal claim.”).
Berghuis v. Thompkins, 560 U.S. 370, 390 (2010), clarified that courts
may not grant habeas relief after de novo review without first determining whether
AEDPA deference to state court decisions applies, but they may deny habeas relief
after de novo review. That is, courts can “deny writs of habeas corpus under
§ 2254 by engaging in de novo review when it is unclear whether AEDPA
deference applies, because a habeas petitioner will not be entitled to a writ of
habeas corpus if his or her claim is rejected on de novo review.” Id. (citing 28
U.S.C. § 2254(a)). Thus, a court may “reject a claim on the merits and forgo an
analysis of procedural default.” Ismael Rosales Aniceto v. Foulk, 2017 WL
2189681, at *6 (E.D. Cal. May 18, 2017); see Lambrix v. Singletary, 520 U.S. 518,
523 (1997) (holding that a court reviewing a habeas claim, in the interest of
judicial economy, may bypass an asserted procedural bar to consider the claim on
the merits); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (“Procedural
bar issues are not infrequently more complex than the merits issues presented by
11

the appeal, so it may well make sense in some instances to proceed to the merits if
the result will be the same”); Gales v. Kernan, 2017 WL 1377737, at *6 (C.D. Cal.
Mar. 7, 2017) (declining to consider whether habeas claim was exhausted because
the claim fails under de novo review).
IV. DISCUSSION
A.

Objections to the Amended F&R
Brown’s Objections claim that (1) his indictment is invalid; (2) the

Hawaii Circuit Court lacked jurisdiction over his case; (3) the Hawaii Circuit Court
violated the constitutional ex post facto, due process, and double jeopardy clauses;
and (4) he received ineffective assistance of counsel. Objs. at 2; Letter at 1, ECF
No. 15-1. The Objections also include new claims raised for the first time: (1) the
Hawaii Paroling Authority (“HPA”) discriminated against him; 9 (2) Hawaii law
labeling him a sex offender and providing public notice of such status constitutes
unlawful discrimination in violation of the Hawaii constitution; and (3) the
teaching of evolution in schools violates the First Amendment to the United States
constitution. Id. at 2-3.

9

Brown alleges that the HPA told him that they “don’t want to hear about your case, we
are here to denie [(sic)] your parole. Do sex offender program; max-out. [HPA] is
unconstitutional void ab initio under Apprendi. New board need[s] new sentencing federal
guidelines. I . . . was disrespected and discriminated by (HPA).” Objs. at 2.

12

1.

New Claims
The court declines to consider the claims Brown raises for the first

time in his Objections. See Akhtar v. Mesa, 698 F.3d 1202, 1208 (9th Cir. 2012)
(recognizing that the court may refuse to consider new arguments raised in
objections to a magistrate judge’s report and recommendation); see also Greene v.
Henry, 302 F.3d 1067, 1070 n.3 (9th Cir. 2002) (declining to consider three new
claims because they were not made in the original habeas petition); Greenhow v.
Sec’y Health & Human Servs., 863 F.2d 633, 638-39 (9th Cir. 1988) (“[A]llowing
parties to litigate fully their case before the magistrate and, if unsuccessful, to
change their strategy and present a different theory to the district court would
frustrate the purpose of the Magistrate Act.”), overruled on other grounds by
United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (per
curiam); Collins v. Arnold, 2017 WL 2468767, at *1 (C.D. Cal. June 6, 2017)
(declining to consider new habeas claim raised for the first time in objections to a
magistrate judge’s report and recommendation in part because the claim had not
been exhausted in state court).
But even if the court were to consider Brown’s new claims de novo,
they would fail, and dismissal would be warranted. See 28 U.S.C. 2254(b)(2);
Berghuis, 560 U.S. at 390; Cassett, 406 F.3d at 623-24. Brown’s allegations of
discrimination by the HPA are conclusory, and fail to show that Brown is being
13

held in custody in violation of federal discrimination law. Brown’s claim that
labeling him a sex offender violated the Hawaii constitution does not raise a
federal issue. And Brown fails to allege how the teaching of evolution in schools
causes him to be held in custody in violation of the United States constitution or
federal law.
2.

Remaining Claims
The court addresses each of Brown’s Objections to the Amended

F&R.
a.

Challenge to the Indictment

The indictment charged Brown with two counts of “sexual contact”
with a person “who was less than fourteen years old, by placing his hand on her
vagina, thereby committing the offense of Sexual Assault in the Third Degree in
violation of [HRS §] 707-732(1)(b).” Gov’t Ex. F, ECF No. 12-7. In his § 2254
Petition, Brown alleges that the indictment was defective and invalid because the
words “hands on vagina” constitute sexual penetration, supporting a first-degree
sexual assault charge, but he was charged with third-degree sexual assault. See
§ 2254 Mem. at PageID #16, ECF No. 1-1. The Amended F&R determined that
Brown received fair notice of his charges under both the Fifth and Sixth
Amendments. Am. F&R at 11-13. In his Objections, Brown again contends that
his indictment was defective and invalid. Objs. at 2. The court disagrees.
14

Initially, the court finds that the Hawaii Supreme Court determined
that “the indictment charging Brown with subjecting the complainants to sexual
contact by placing his hand on their vaginas was sufficient to apprise Brown of
what he must be prepared to meet.” Brown, 2005 WL 2338855, at *1. But because
there is no reference whatsoever to federal law, it is unclear whether this claim is
exhausted.10 See Lyons, 232 F.3d at 670; Hiivala, 195 F.3d at 1106. Thus, the
court reviews this claim de novo.
“The Sixth Amendment guarantees a criminal defendant the
fundamental right to be informed of the . . . charges made against him so as to
permit adequate preparation of a defense.” Gautt v. Lewis, 489 F.3d 993, 1002
(9th Cir. 2007). “Notice and an opportunity to defend against the charges . . . are
an integral part of the due process protected by the Fourteenth Amendment, and
are . . . applicable in state prosecutions.” Maassen v. Ryan, 2013 WL 5781077, at
*9 (D. Ariz. Oct. 25, 2013) (citations omitted). “[D]eficiencies in state court
indictments are not ordinarily a basis of federal habeas corpus relief unless the
deficiency makes the trial so egregiously unfair as to amount to a deprivation of

10

Neither Brown nor the Government provided to this court copies of Brown’s appeal
documents.
15

. . . due process.” Id. (quoting Ashford v. Evans, 780 F.2d 405, 407 (4th Cir.
1985)). To prevail, a petitioner must demonstrate prejudice from the deficiency.
Id. (citing Brodit v. Cambra, 350 F.3d 985, 988-89 (9th Cir. 2003)).
Under Hawaii law, an indictment may provide notice of charges by
the wording or by reference to the applicable statute. See Lincoln v. Sunn, 807
F.2d 805, 813 (9th Cir. 1987) (citing State v. Baker, 55 Haw. 621, 622, 525 P.2d
571, 572 (9th Cir. 1974)). Here, the indictment explicitly charged Brown with
third-degree sexual assault in violation of the applicable statute. Thus, the
indictment was not invalid. Moreover, as the Amended F&R correctly stated,
“Brown does not argue that he was unaware of being charged with touching the
complainants’ vulvae, that he was unable to fairly prepare his defense, or that any
other factors exist which would demonstrate prejudice.” Am. F&R at 12-13.
After de novo review, this court finds that the indictment was not
invalid, and provided Brown fair notice of his charges in accordance with the Sixth
Amendment and due process clause. Brown has failed to establish that the
wording of his indictment causes him to be held custody in violation of the United
States constitution or federal law.
b.

Jurisdiction claim

Brown asserts two separate grounds for his claim that the Hawaii
Circuit Court lacked jurisdiction.
16

First, Brown argues that the Hawaii Circuit Court lacked jurisdiction
over him because “[t]he Family Court shall have exclusive original jurisdiction to
try any person under the age of fourteen years of age.” § 2254 Petition at PageID
#21; see Objs. at 2 (“Jurisdiction Violation (‘The State’) Court Void; (‘The
Family’) Court”). Brown argues that because the victims were under the age of
fourteen, he should have been tried in family court.
Hawaii law governs the jurisdiction of its family court, providing in
part that family court “shall have exclusive original jurisdiction in proceedings . . .
[c]oncerning any person who is alleged to have committed an act prior to achieving
eighteen years of age that would constitute a violation or attempted violation of
any . . . law or ordinance.” HRS § 571-11(1). Because Brown’s claim concerns
purely a state-law matter and does not raise any federal-law issue, this claim is not
within the scope of a § 2254 habeas petition. See Swarthout, 562 U.S. at 221;
Estelle, 502 U.S. at 67-68. Moreover, on its face, Brown’s argument fails. Brown,
who was not a minor, was on trial, not his victims. Thus, Brown’s argument does
not apply to the facts of his case. Brown does not provide any authority, nor could
he, to support his claim that the Hawaii Circuit Court lacks jurisdiction to try
criminal cases against adult defendants where the victims are under fourteen years
of age.

17

Second, relying on United States v. Cotton, 535 U.S. 625, 630 (2002),
Brown argues that because his indictment allegedly was defective, the Hawaii
Circuit Court lacked subject matter jurisdiction over his case. Objs. at 1. Because
it does not appear that Brown raised this claim in the state courts, it is likely
unexhausted and thus, the court reviews it de novo.
Brown’s reliance on Cotton is misplaced -- Cotton confirmed that a
defective indictment does not deprive a court of jurisdiction. 535 U.S. at 630-31.
Thus, even if the indictment was defective -- and as set forth above, the court does
not find that it was -- it would not deprive the Hawaii Circuit Court of jurisdiction.
In sum, Brown’s claim that the Hawaii Circuit Court lacked
jurisdiction is without merit. And, to the extent it is based on the argument that
Hawaii’s family court had exclusive jurisdiction over Brown’s case, it is also a
matter of state law that does not raise any violation of the United States
constitution or federal law.
c.

Ex Post Facto Claim

Brown claims that the Hawaii Circuit Court’s application of Hawaii’s
amended extended-term sentencing scheme to a crime that he committed before the
amendments were enacted violated the constitutional ex post facto clause. See
Objs. at 2 (“EX POST FACTO - Trial One: Sex Assault case 10 years ONLY;

18

NOTICE ‘After’ Trial. Apprendi - violation at inactment [(sic)] VOID. No-notice
Before’ Trial”); see also § 2254 Petition at PageID #17. Brown is mistaken.
Although Brown apparently failed to raise the issue of an ex post facto
violation in the state courts, in denying his direct appeal, the ICA relied on a
Hawaii Supreme Court case that explicitly addressed this issue. See Brown, 2015
WL 5774713, at *2 (citing Jess, 184 P.3d at 165-67). The ICA recognized that
“[t]he Hawaii Supreme Court has upheld the constitutionality of the retroactive
application of [Hawaii’s amended extended-term sentencing scheme] to defendants
like Brown, whose offenses were committed before the enactment of [the
amendments].” Id. (citing Jess, 184 P.3d at 165-67) (other citation omitted). In
Jess, the Hawaii Supreme Court engaged in a lengthy examination of United States
Supreme Court case law, and lower court’s interpretations of such law, and
determined that application of the amended extended-term sentencing scheme does
not violate the United States constitutional ex post facto clause. 184 P.3d at 16567.
Here, if exhausted, Brown fails to show that the Hawaii Supreme
Court’s ruling on this issue is “contrary to, or involved an unreasonable application
of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1); see White, 136 S. Ct.
at 460 (requiring a habeas petitioner to show that the state court’s ruling was “so

19

lacking in justification that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded disagreement”).
And if this claim is unexhausted, after de novo review, this court finds
that it lacks merit. The ex post facto clause of the United States constitution 11
prohibits the enactment of a law that, in part, “inflicts a greater punishment for the
crime than the punishment authorized by law when the crime was committed.”
Aguilar v. Paramo, 2017 WL 3092090, at *3 (N.D. Cal. July 20, 2017) (citing
Stoger v. California, 539 U.S. 607, 611-12 (2003)) (emphasis added); see U.S.
Const. art. I, § 10, cl. 1; see also Am. Civil Liberties Union of Nev. v. Masto, 670
F.3d 1046, 1052 (9th Cir. 2012) (recognizing that the ex post facto clause prohibits
the “retroactively imposing additional punishment for commission of a criminal
offense”) (citing U.S. Const. art. I, § 9, cl. 3). For a law to be ex post facto, it must
not only be a “retroactive application of a criminal law,” but it must also
“disadvantage[] the defendant.” United States v. Waters, 771 F.3d 679, 680 (9th
Cir. 2014); see Weaver v. Graham, 450 U.S. 24, 29 (1981).
Hawaii’s amended extended-term sentencing scheme altered only the
procedure to impose an extended sentence -- it now requires a jury, rather than a
11

Article I, § 10, cl. 1 provides that “[n]o State shall . . . pass any . . . ex post facto
Law[.]” There is also a second ex post facto clause applicable to both federal and state
governments, which provides that “[n]o . . . ex post facto Law shall be passed.” U.S. Const. art.
I, § 9, cl. 3.

20

judge, to determine a defendant’s eligibility for an extended term of imprisonment
based on findings of statutory factors beyond a reasonable doubt. See HRS
§§ 706-661, -662, & -664. The amended scheme did not “expand the scope of
criminal liability, increase punishment, or alter any evidentiary burdens to [the
defendant’s] detriment.” Jess, 184 P.3d at 161. Brown was originally sentenced to
two consecutive ten-year terms of imprisonment, and after his eligibility jury trial,
he received the exact same sentence. Because Brown did not receive, and could
not have received, a more severe punishment from the application of the amended
extended-term sentencing scheme, he was not disadvantaged. The Hawaii Circuit
Court’s application of Hawaii’s amended extended-term sentencing scheme at
Brown’s eligibility trial did not violate the ex post facto provision of the United
States constitution.
d.

Double Jeopardy Claim

Brown also claims that empaneling a second jury for his eligibility
trial, rather than empaneling the first jury, violated the constitution’s double
jeopardy clause. See Objs. at 2 (“DOUBLE JEOBARDY [(sic)] CLAUSE: At
(1) Aquittal [(sic)] or (2) Conviction, Violation.”). Brown apparently failed to
exhaust this issue by raising it before the state courts. And after de novo review,
the court finds that Brown’s claim is without merit.

21

The double jeopardy clause of the United States constitution
“protects against a second prosecution for the same offense after conviction. And
it protects against multiple punishments for the same offense.” North Carolina v.
Pearce, 395 U.S. 711 (1969), overruled on other grounds by Alabama v. Smith,
490 U.S. 794 (1989); see U.S. Const. amend. V. But the double jeopardy clause
does not apply to resentencing proceedings, even where a new sentence may be
subject to enhancement. See Monge v. California, 524 U.S. 721, 734 (1998)
(“[T]he Double Jeopardy Clause does not preclude retrial on a prior conviction
allegation in the noncapital sentencing context.”); see also Franco v. Haviland,
2011 WL 6736051, at *5 (N.D. Cal. Dec. 21, 2011) (holding that after petitioner’s
successful appeal of his first sentence, double jeopardy did not preclude the trial
court from convening a jury to find aggravating facts and then resentencing
petitioner). Even where a second jury is convened solely to determine sentencing
allegations, the double jeopardy clause does not apply “because sentencing
determinations in noncapital cases do not place a defendant in jeopardy for an
‘offense.’” Jones v. Caldron, 2003 WL 21667146, at *8 (N.D. Cal. July 14, 2003)
(“There is no Supreme Court authority requiring, as a matter of federal law, that
petitioner’s [sentencing enhancement factors] be tried by the same jury that tried
the underlying offenses.”).

22

Brown’s eligibility trial was a retrial solely to determine sentencing
enhancement factors. Thus, the double jeopardy clause does not apply.
e.

Due Process Claim

Brown claims that application of Hawaii’s amended extended-term
sentencing scheme violated his constitutional right to due process. See Objs. at 2
(“Haw. Rev. Statue [(sic)] 706-662, Petitioners Extended terms must be set aside
as matter of due process”). In his § 2254 Petition, Brown appears to argue that
because his indictment did not set forth aggravating factors, application of the
amended extended-term sentencing scheme violated his due process rights. See
§ 2254 Petition at PageID #16 (arguing that [Apprendi] ruled that a jury must
determine facts regarding the “aggravating circumstances charged in the
Indictment and arraignment and plea”).
Brown does not appear to have exhausted this claim by raising it
explicitly in the state courts. 12 The court thus considers it de novo.13 And for the
reasons set forth below, the court finds that Brown’s due process claim fails.

12

In another matter, the Hawaii Supreme Court has ruled on this very issue. See Jess,
184 P.3d at 160-62 (holding that application of Hawaii’s amended extended-term sentencing
scheme to a defendant whose charging document was filed prior to March 31, 2008 and did not
allege aggravating factors did not violate the United States Constitution’s due process clause).
13

The Amended F&R determined that (1) the indictment provided fair notice of the
offense charges against Brown, (2) application of the amended extended-term sentencing scheme
did not violate the Sixth Amendment, and (3) the eligibility trial verdict form did not violate due
process. See Am. F&R at 13, 15, 18. But the Amended F&R did not address Brown’s claim that
(cont’d . . . )
23

The due process clause guarantees a defendant a fair trial, but it does
not require state courts to comply with the Fifth Amendment’s provision for
presentment or indictment by a grand jury. Alexander v. Louisiana, 405 U.S. 625,
633 (1972) (explaining that “federal concepts of a ‘grand jury,’ [which are] binding
on the federal courts under the Fifth Amendment, are [not] obligatory for the
States”); see also Apprendi, 530 U.S. at 477 n.3 (recognizing that the Fifth
Amendment grand jury clause is not applicable to the states under the Fourteenth
Amendment). Apprendi held that under the Fourteenth Amendment’s due process
clause and the Sixth Amendment’s right to a jury trial, “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” 530 U.S. at 490. But Apprendi explicitly declined to address
whether aggravating factors for sentence enhancement must be included in a state
court indictment. See id. at 477 n.3 (“Apprendi has not here asserted a
constitutional claim based on the omission of any reference to sentence
enhancement . . . in the indictment. . . . We thus do not address the indictment
question separately today.”); see also State v. Siers, 274 P.3d 358, 363 (Wash.
2012) (en banc) (“[T]he United States Supreme Court did not address the question

he was denied due process because the indictment did not notify him of the aggravating factors
to be determined at an eligibility trial for a sentence enhancement.
24

of whether an aggravating circumstance must be pleaded in the charging
document.”) (citing Blakely v. Washington, 542 U.S. 296, 301 (2004), and
Apprendi, 530 U.S. at 477 n.3.).
The overwhelming majority of courts that have addressed this issue
have determined that “aggravating circumstances do not need to be alleged in the
indictment pursuant to the Fifth Amendment, Sixth Amendment, or Due Process
Clause.” State v. Abdullah, 348 P.3d 1, 73-74 & n.29 (Idaho 2015) (citing cases);
see, e.g., State v. Scott, 183 P.3d 801, 835 (Kan. 2008) (recognizing that the Sixth
Amendment right to “notice and cause of the accusation” is applicable to the states
and requires some form of notice of aggravating factors, but that the such notice is
not required to be in the indictment) (citing Fawcett v. Bablitch, 962 F.2d 617, 618
(7th Cir. 1992)); State v. Dague, 143 P.3d 988, 1007 (Alaska Ct. App. 2006)
(“[T]he due process clause of the Fourteenth Amendment does not require
sentencing factors to be included in the indictment -- even when, under Apprendi
and Blakely, the Sixth and Fourteenth Amendments would require the states to give
defendants a jury trial on those same factors.”).
This court agrees with the clear weight of authority and finds that the
Fourteenth Amendment’s due process clause does not require that aggravating
factors for sentencing enhancement be included in a state indictment. After all, the
State was not required to proceed by indictment. So at most, Brown was entitled
25

to fair notice of the charges and whether an extended-term sentence would be
sought. And he received that exact notice -- more than four years prior to the
eligibility trial,14 the prosecutor filed a motion for an extended term of
imprisonment setting forth the aggravating factors that would be presented to the
jury. See Gov’t Answer, Ex. “H,” ECF No. 12-9. And Hawaii’s amended
extended-term sentencing scheme provides that “[a] defendant previously
sentenced to an extended term under a prior version of this chapter shall be deemed
to have received notice of an intention to seek an extended term of imprisonment.”
Because Brown was previously sentenced to an extended-term sentence, he was
deemed to have notice that at the eligibility trial, an extended-term sentence would
be sought.
Brown’s claim that his United States constitutional due process rights
were violated because his indictment failed to include aggravating factors for
sentence enhancement is without merit.
f.

Ineffective assistance of counsel claims

Brown alleges that three of his prior counsel -- William Bagasol,
Richard Gronna, and James Tabe -- deprived him of effective assistance of counsel
at various stages of litigation. To demonstrate ineffective assistance of counsel,
14

The prosecutor filed a second motion for an extended-term of imprisonment on
October 3, 2006, see Gov’t Ex. “H,” and the eligibility trial commenced on May 8, 2012, see
Gov’t Ex. “E.”
26

Brown must show that: “(1) counsel’s performance ‘fell below an objective
standard of reasonableness’; and (2) ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Smith v. Mahoney, 611 F.3d 987, 986 (9th Cir. 2010) (quoting
Strickland v. Washington, 466 U.S. 668, 688 (1984)). Habeas relief is not
warranted if a petitioner fails to establish either Strickland factor. Murray v.
Schriro, 746 F.3d 418, 457 (9th Cir. 2014).
Brown apparently did not raise his ineffective assistance of counsel
claims in his direct appeals, and he did not initiate any state collateral proceedings.
Thus, these claims will be reviewed de novo.
In his § 2254 Petition, Brown alleges that Bagasol failed to challenge
the validity of the indictment, arguing that the indictment was void because it
included words constituting a first-degree sexual assault charge (hands on vagina),
but charged Brown with third-degree sexual assault. See § 2254 Mem. at 1, ECF
No. 1-1. The § 2254 Petition further alleges that Bagasol failed to advise Brown
that the Hawaii Circuit Court lacked jurisdiction. Id. at 5. In his Objections,
against Bagasol, Brown alleges “two prior cases plea deal; jurisdiction, potentially
‘meritorious defence’ [(sic)] . . . ongoing case plea deal drug and robbery 2d; nodrug quantity to extend Mr. Brown for extended term.” Objs. at 2.

27

These allegations are conclusory, without merit, confusing, and/or
lack specific facts to support an ineffective assistance of counsel claim. First, as
set forth above, Brown’s claims that his indictment was void and the Hawaii
Circuit Court lacked jurisdiction are baseless. Bagasol’s failure to raise baseless
issues does not constitute representation that “fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 668. And even if Bagasol had
challenged the validity of Brown’s indictment or the Hawaii Circuit Court’s
jurisdiction, those challenges would not have affected Brown’s conviction or
sentence. Second, Brown fails to allege any facts whatsoever to show how
Bagasol’s conduct in connection with a plea deal in prior cases or any issue
concerning drug quantity in a separate case constitutes conduct in this case that fell
below an objective standard of reasonableness, or that but for counsel’s conduct,
Brown would have obtained a different result in this case. See Smith, 611 F.3d at
986.
As to Gronna, Brown alleges that he “failed to raise my State v.
Mueller, [102 Haw. 391, 76 P.3d 943 (2003)] issue for appeal . . . .” Id. And
Brown alleges that Tabe “bypassed (ICA) could of got a ruling on appeal in (HSC)

28

Supreme Court INFANT: contact/penetrastion [(sic)] it covered the statute [HRS
§§] 707-732 and 707-730 ERROR.” Id.15
These allegations are largely conclusory and fail to provide the
factual specificity necessary to demonstrate that he received ineffective assistance
of counsel. First, even if Gronna had cited Mueller, that case would not have
affected Brown’s conviction or sentence. Mueller determined that under Hawaii
law, first-degree sexual assault requires actual physical penetration, unlike thirddegree sexual assault. 102 Haw. 391, 76 P.3d 943. Because a first-degree sexual
assault conviction was obtained absent proof of actual physical penetration,
Mueller vacated that conviction and remanded for entry of judgment for thirddegree sexual assault. Id. Brown was neither charged with nor convicted of firstdegree sexual assault, and therefore evidence of physical penetration was not
needed. There simply was no Mueller issue for counsel to raise. Second, Brown’s
allegations about Tabe’s actions are conclusory and speculative, and therefore
insufficient to establish ineffective assistance of counsel.
In sum, after de novo review of Brown’s ineffective assistance of
counsel claims raised in the § 2254 Petition and Objections, the court finds that
15

It appears that Brown did not include allegations against Gronna or Tabe in the
§ 2254 Petition. But because he did assert an ineffective assistance of counsel claim that was
scattered throughout the § 2254 Petition, the court cannot be certain that Brown’s claim was not
meant to include conduct by Gronna or Tabe. Thus, the court will consider the allegations in
Brown’s Objections.

29

Brown fails to allege facts showing that counsel’s conduct fell below an objective
standard of reasonableness, or that but for counsel’s conduct, Brown would have
obtained a different result. See Smith, 611 F.3d at 986. Thus, Brown failed to
establish that he received ineffective assistance of counsel in violation of the Sixth
Amendment.
B.

Unobjected Portions of the Amended F&R
Although Brown did not object to the Amended F&R with respect to

his remaining claims, this court reviews those claims for clear error. See H., 2016
WL 4522177, at *3.
Brown apparently failed to exhaust his remaining claims. First,
although Brown challenged the Hawaii Circuit Court’s admission of evidence of
Brown’s prior robbery conviction on direct appeal of his conviction, the Hawaii
Supreme Court denied that challenge without reference to federal law. Thus, it
appears that Brown did not assert that admission of evidence of his prior robbery
conviction violated the United States constitution’s due process clause. Second,
although Brown did exhaust his claim that Hawaii’s former extended-term
sentencing scheme violated the Sixth Amendment -- indeed, he obtained habeas
relief on that claim -- he does not appear to have exhausted his claim that Hawaii’s
amended extended-term sentencing scheme violates the Sixth Amendment. And
third, Brown does not appear to have raised his claims that the eligibility trial
30

verdict form violated the due process clause and that HRS § 706-668.5(3) is
unconstitutionally “ambiguous” prior to the instant § 2254 Petition in federal court.
Because these claims are likely unexhausted, the Amended F&R
correctly addressed and denied them on the merits. The court finds no error of law
or fact in the Amended F&R’s analysis of these claims.
In short, Brown failed to establish that he is being held in custody in
violation of the constitution, laws, or treaties of the United States. Thus, his
§ 2254 Petition is DENIED.
C.

Certificate of Appealability
Rule 11 of the Rules Governing Section 2254 Cases in the United

States District Courts provides that “[t]he district court must issue or deny a
certificate of appealability when it enters a final order adverse to the applicant.” A
certificate of appealability (“COA”) may issue only if the petitioner “has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
When a constitutional claim is rejected on its merits, “The petitioner must
demonstrate that reasonable jurists would find the ... court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000).

31

The court finds that reasonable jurists would not find that the denial of
Brown’s claims was debatable or wrong. Thus, a certificate of appealability is
DENIED.
V. CONCLUSION
Based on the foregoing, the court ADOPTS the Amended F&R to
deny Brown’s § 2254 Petition, DENIES Brown’s § 2254 Petition, and DENIES a
certificate of appealability. The Clerk of Court is directed to close this case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 25, 2017.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Brown v. Taylor, Civ. No. 16-00649 JMS-RLP, Order: (1) Adopting Amended Findings and
Recommendation to Deny Herbert Brown’s 28 U.S.C. § 2254 Petition; and (2) Denying a
Certificate of Appealability

32