Ah Puck v. State of Hawaii

Filing 21

ORDER DENYING MOTION TO STAY re 20 - Signed by JUDGE DERRICK K. WATSON on 9/14/2017. "Petitioner's Motion for Stay is DENIED. He is ORDERED to submit an Amended Petition on or before October 6, 2017. The amended pe tition must name a proper respondent, detail the facts, constitutional basis, and legal theory underlying Petitioner's claims, and demonstrate that his claims are fully exhausted. Failure to comply with these instructions will result in autom atic dismissal of this action without further notice. The Clerk is DIRECTED to send Petitioner a blank petition for writ of habeas corpus form so that he may comply with the instructions in this Order." (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). Hardy K. Ah Puck, Jr. shall be served by first class mail at the address of record on September 15, 2017. A copy of the court's petition for writ of habeas corpus form shall be included in the mailing to Mr. Ah Puck.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HARDY K. AH PUCK, JR.,
#A0723792
Petitioner,
vs.
STATE OF HAWAII,
Respondent.
____________________________

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CIV. NO. 17-00173 DKW-KJM
ORDER DENYING MOTION TO
STAY

Petitioner has filed a Motion to Stay this action for writ of habeas corpus
brought pursuant to 28 U.S.C. § 2254. ECF No. 20. Petitioner apparently seeks a
stay while state court proceedings regarding early termination of his term of
probation in State v. Ah Puck, 2PC121000560 (Haw. 2d Cir. Ct.) and State v. Ah
Puck, 2PC121000272 (Haw. Family Ct.), are pending. See Pet., ECF No. 1; see
also eCourt Kokua, https://jimspss1.courts.state.hi.us/JEFS (last visited Sept. 11,
2017).1

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A court “may take notice of proceedings in other courts, both within and without the federal
judicial system, if those proceedings have a direct relation to matters at issue.” United States ex rel.
Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).

Petitioner’s Motion to Stay is DENIED without prejudice. Petitioner is
ORDERED to file an amended petition that complies with the Court’s previous
Orders on or before October 6, 2017.
I. BACKGROUND
On April 14, 2017, Petitioner commenced this habeas action to challenge the
revocation of his probation in 2PC121000560 and 2PC121000272.2 Petitioner
alleged that his probation was improperly revoked because, although he failed to
report to his probation officer when required, he was unable to do so because he
was in the hospital recovering from surgery. See Pet., ECF No. 1, PageID #6.
On May 4, 2017, the Court dismissed the Petition with leave granted to
amend. Order, ECF No. 9. Petitioner was ordered to (1) name a proper
respondent; and to set forth the (2) underlying facts regarding the revocation of
probation; (3) federal bases for his claims; (4) steps he had taken to exhaust his
claims; and (5) relevant dates regarding his claims.
On June 5, 2017, Petitioner filed an Amended Petition. ECF No. 13. On
June 21, 2017, the Court dismissed the Amended Petition for its failure once again
to name a proper respondent, clarify the federal bases for Petitioner’s claims, and

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The charges in 2PC121000272 were dismissed with prejudice on June 9, 2016. See
https://jimspss1.courts.state.hi.us/JEFS.
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explain the steps Petitioner had taken to exhaust his claims. Order, ECF No. 19.
Petitioner was directed to file an amended petition on or before September 8, 2017,
and was notified that a failure to comply with the Order’s instructions would result
in dismissal of this action.
On August 30, 2017, Petitioner filed the Motion to Stay and a notice of
change of address that indicates he has been released from custody. ECF No. 20.
Public records show that Petitioner has been released on probation and that a
hearing is scheduled on September 28, 2017, in the Hawaii Second Circuit Court,
regarding early termination of probation in 2PC121000560. See Hawaii SAVIN:
https://www.vinelink.com/vinelink; https://jimspss1.courts.state.hi.us/JEFS.
II.

DISCUSSION

Petitioner fails to provide any reason why this action should be stayed in its
present procedural posture.
First, Petitioner’s two earlier petitions have been dismissed and he has not
filed an amended petition complying with the Court’s previous orders. There is
therefore nothing before the Court to stay.
Second, Petitioner has a hearing scheduled regarding the early termination of
his term of probation that may resolve any issues Petitioner is challenging. This
hearing may also resolve whether Petitioner has fully exhausted his claims and
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whether state court remedies are still available. See Rose v. Lundy, 455 U.S. 509,
510 (1982).
Third, although the Court has authority to stay certain unexhausted habeas
petitions, that option is available only in limited circumstances. Rhines v. Weber,
544 U.S. 269, 276, (2005). As the Rhines Court stated:
[S]tay and abeyance is only appropriate when the district court
determines there was good cause for the petitioner’s failure to exhaust
his claims first in state court. Moreover, even if a petitioner had good
cause for that failure, the district court would abuse its discretion if it
were to grant him a stay when his unexhausted claims are plainly
meritless. Cf. 28 U.S.C. § 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”).
Rhines, 544 U.S. at 277. Because there is no operative petition to review, there is
no means for the Court to determine whether Petitioner has good cause entitling
him to a stay of this action or whether he has any meritorious claims. Petitioner’s
Motion clearly does not demonstrate such good cause.
Finally, although Petitioner’s current release on probation does not deprive
the court of jurisdiction over his claims, see Chaker v. Crogan, 428 F.3d 1215,
1219 (9th Cir. 2005) (holding probationer is still “in custody”), if Petitioner’s term
of probation is terminated, his challenge to his probation sentence will become
moot. See Spencer v. Kemna, 523 U.S. 1, 14–16 (1998). Unlike criminal
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convictions, no collateral consequences attend a prisoner’s incarceration imposed
for violation of parole (or probation) after the sentence for the violation is served.
See id. In Spencer, the prisoner’s petition was deemed moot because he had
served the term of incarceration resulting from his parole revocation and there was
no “case or controversy” to establish Article III standing. Id. at 14, 18.
III.

CONCLUSION

Petitioner’s Motion for Stay is DENIED. He is ORDERED to submit an
Amended Petition on or before October 6, 2017. The amended petition must name
a proper respondent, detail the facts, constitutional basis, and legal theory
underlying Petitioner’s claims, and demonstrate that his claims are fully exhausted.
Failure to comply with these instructions will result in automatic dismissal of this
action without further notice.

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The Clerk is DIRECTED to send Petitioner a blank petition for writ of
habeas corpus form so that he may comply with the instructions in this Order.
IT IS SO ORDERED.
DATED: September 14, 2017 at Honolulu, Hawai’i.

/s/ Derrick K. Watson
Derrick K. Watson
United States District Judge

Hardy K. Ah Puck, Jr. vs. State of Hawaii; Civil No. 17-00173 DKW-KJM; ORDER DENYING
MOTION TO STAY
Ah Puck v. Hawaii,1:17-cv-00173 DKW-KJM; OSC 2017 Ah Puck 17-173 (dsm amd pet)

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