Ah Puck v. State of Hawaii

Filing 9

ORDER DISMISSING PETITION WITH LEAVE TO AMEND AND DENYING PENDING MOTIONS re 1 , 4 , 6 , 7 - Signed by JUDGE DERRICK K. WATSON on 5/4/2017. "(1) The Petition is DISMISSED without prejudice. Petitioner is DIRECTED to file an am ended petition on court forms. He must name a proper respondent, detail the facts underlying his claims, assert the federal bases for hisclaims, address the exhaustion of his claims, demonstrate that the Petition is timely (by including the date his probation was revoked and any facts relating to tolling), and sign the amended petition under penalty of perjury on or before June 9, 2017. (2) Petitioner's (1) Motion for Temporary Restraining Order and/or Preliminary Injunction , ECF No. 4; (2) Motion for an Order to Award Recompense, or/and Compensate, ECF No. 6; and (3) Request for Default Judgment by the Clerk, ECF No. 7, are DENIED. (3) The Clerk is DIRECTED to send Petitioner a blank petition for writ of hab eas corpus so he can comply with the instructions in this Order. (4) Failure to timely file an amended petition will result in dismissal of this action without prejudice." (emt, )CERTIFICATE OF SERVICEPar ticipants 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. served by first class mail at the address of record on May 4, 2017. A copy of the court's petition for writ of habeas corpus form was 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

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Petitioner,
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vs.
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STATE OF HAWAII,
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Respondent.
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_____________________________ )

CIV. NO. 17-00173 DKW-KJM
ORDER DISMISSING PETITION
WITH LEAVE TO AMEND AND
DENYING PENDING MOTIONS

Pro se Petitioner Hardy K. Ah Puck, Jr., who is incarcerated at the Maui
Community Correctional Center (“MCCC”), has filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254, a Motion for Temporary Restraining Order, a
Motion for an Order to Award Recompense, and a Request for Default Judgment.
See ECF Nos. 1, 4, 6, 7.
The Petition is DISMISSED without prejudice and Petitioner’s Motions are
DENIED. Petitioner may file an amended petition on or before June 9, 2017.
Failure to comply with the court’s instructions and timely file an amended petition
will result in dismissal of this action without prejudice.
I.

BACKGROUND

Petitioner challenges probation revocation proceedings in State v. Ah Puck,
2PC121000560 (Haw. 2d Cir. Ct.) and State v. Ah Puck, 2FC121000272 (Haw.

Family Ct.), allegedly held on March 24, 2016. See Petition, ECF No. 1; see also
eCourt Kokua, https://jimspss1.courts.state.hi.us/JEFS (last visited May 2, 2017).
Petitioner provides no details concerning his underlying convictions or sentences
in these cases, nor does he explain what occurred at the revocation hearing.
Rather, Petitioner complains that, although he told his probation officer, Craig
Hirayasu, that he missed his probation appointment because he was in the hospital
recovering from surgery, his probation was nonetheless revoked. He apparently
claims that the revocation of his probation was an abuse of discretion, because he
allegedly had a valid excuse for his probation violation. See Pet., ECF No. 1,
PageID #6 (Ground One).
Petitioner states that he “forgot to file an appeal so it was waived or
dismissed.” Id., PageID #5. He challenged the proceedings in the state court at
some point, however, because he states that on or about January 17, 2017, his
petitions were “waived and or dismissed.” Id. He says that he “did not have a
chance to appeal [the dismissal] of any petition, so I filed a prisoner civil rights
complaint form,” referring to Ah Puck v. Werk, Civ. No. 17-00154 DKW (D. Haw.
2017) (complaint dismissed with leave to amend May 2, 2017).

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II.

THE PETITION IS DISMISSED

There are several problems with the Petition that must be cured before the
Court can consider it.
First, a petitioner seeking a writ of habeas corpus must name the state officer
having custody of him as respondent to the petition. See Rule 2(a) of the Rules
Governing § 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th
Cir.1996); Stanley v. Cal. Sup. Ct., 21 F.3d 359, 360 (9th Cir. 1994). The correct
respondent is normally the warden of the facility in which the petitioner is
incarcerated, or the chief officer in charge of state penal institutions. Brittingham
v. United States, 982 F.2d 378, 379 (9th Cir. 1992). Petitioner is DIRECTED to
file an amended petition naming the official with the ability to release him from
custody as Respondent.
Second, Petitioner apparently attacks the revocation of his probation in
2PC121000560, but he also refers to 2FC121000272, making it unclear which
probation revocation proceeding he challenges. “A petitioner who seeks relief
from judgments of more than one state court must file a separate petition covering
the judgment or judgments of each court.” See Rule 2(e) of the Rules Governing
§ 2254 Cases. Petitioner is DIRECTED to clarify which revocation of probation
sentence he challenges if he files an amended petition.
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Third, Petitioner fails to specify the federal bases for his claims. That is, he
fails to allege “that he is in custody in violation of the Constitution or laws or
treaties of the United States.” See 28 U.S.C. § 2254(a). Rule 2(c)(2) of the Rules
Governing Section 2254 Cases in the United States District Courts (Habeas Rules)
requires a federal habeas petition to state the facts that support each ground for
relief. See also Mayle v. Felix, 545 U.S. 644, 654-55 (2005) (stating Habeas Rule
2(c) imposes “a more demanding” pleading standard than the Federal Rules of
Civil Procedure require for ordinary civil cases). A federal habeas petitioner “is
expected to state facts that point to a real possibility of constitutional error.”
Wacht v. Cardwell, 604 F.2d 1245, 1247 (9th Cir. 1979) (emphasis added). When,
as here, a habeas claim makes only conclusory allegations, the petitioner is not
entitled to federal habeas relief. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)
(“Conclusory allegations . . . [un]supported by a statement of specific facts do not
warrant habeas relief.”); Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995)
(same). The Court cannot make an educated guess as to what federal provisions
Petitioner alleges were violated during his state proceedings, or what facts support
such claims. If Petitioner is claiming that the state court abused its discretion by
failing to credit his explanation for violating the conditions of probation, which

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would be a violation of state law at most, he fails to state a claim pursuant to 28
U.S.C. § 2254. Petitioner is DIRECTED to clarify the federal bases for his claims.
Fourth, Petitioner repeatedly states that he has not appealed his revocation
proceedings, nor properly filed a post-conviction petition pursuant to Rule 40 of
the Hawaii Rules of Penal Procedure. See Pet., ECF No. 1, PageID #4-9. State
prisoners who wish to challenge their confinement in federal court by a petition for
writ of habeas corpus are first required to exhaust state judicial remedies, either on
direct appeal or through collateral proceedings, by presenting the highest state
court available with a fair opportunity to rule on the merits of each and every issue
sought to be raised in federal court. See 28 U.S.C. § 2254(b)©; Granberry v.
Greer, 481 U.S. 129, 134 (1987); Rose v. Lundy, 455 U.S. 509 (1982); McNeeley v.
Arave, 842 F.2d 230, 231 (9th Cir. 1988).
State remedies must be exhausted except in unusual circumstances.
Granberry, 481 U.S. at 134. If state remedies have not been exhausted, the district
court must dismiss the petition. Rose, 455 U.S. at 510; Guizar v. Estelle, 843 F.2d
371, 372 (9th Cir. 1988). A dismissal solely for failure to exhaust is not a
dismissal on the merits, Howard v. Lewis, 905 F.2d 1318, 1322-23 (9th Cir. 1990),
and does not bar a petitioner from returning to federal court after state remedies
have been exhausted. If Petitioner files an amended petition, he must clarify the
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steps he has taken to exhaust his federal claims in the state courts or explain why
exhaustion should be waived.
Fifth, Petitioner is challenging revocation proceedings that he alleges
occurred on March 24, 2016, more than a year before he signed the instant Petition
on April 8, 2017. 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)(1)1
and (2) (tolling the statute while a “properly filed” State post-conviction petition is
pending). Petitioner is NOTIFIED that the Petition appears time-barred on its face
and is subject to dismissal absent equitable tolling of the limitation period.2 It is

1

Under 28 U.S.C. § 2244(d)(1), there is a one-year period of limitation on an application
for writ of habeas corpus by a person in custody pursuant to a state court judgment. 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;

(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.

2

Equitable tolling is available when “extraordinary circumstances beyond a prisoner’s
control ma[d]e it impossible to file a petition on time.” Roy v. Lampert, 465 F.3d 964, 968 (9th
Cir. 2006); see also Holland v. Florida, 560 U.S. 631 (2010).
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Petitioner’s burden to demonstrate that his claims are not time-barred.
The Petition is DISMISSED for the foregoing reasons. Petitioner may file
an amended petition clarifying his claims and curing the deficiencies in his Petition
on or before June 9, 2017.
III.

PETITIONER’S MOTIONS ARE DENIED

Petitioner has filed three motions: (1) Motion for Temporary Restraining
Order and/or Preliminary Injunction (“TRO Motion”), ECF No. 4; (2) Motion for
an Order to Award Recompense, or/and Compensate, ECF No. 6; and (3) Request
for Default Judgment by the Clerk, ECF No. 7.
First, having dismissed the Petition, albeit with leave to amend, there is no
basis in the record to consider or grant Petitioner’s Motions. Moreover, Petitioner
failed to sign any of his Motions, in violation of Rule 11 of the Federal Rules of
Civil Procedure, and they are subject to being stricken unless that deficiency is
promptly corrected. See Fed. R. Civ. P. 11(a) (“The court must strike an unsigned
paper unless the omission is promptly corrected after being called to the . . . party’s
attention.”).
Second, the Motions are individually frivolous. Petitioner’s Request for
Default Judgment by the Clerk is based on “what was said in Court of case no.
# 15-1-0527.” Mot. for Default, ECF No. 7. It appears Petitioner has confused
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proceedings in the state court with the present federal action. Regardless, the
Court has not directed Respondent to answer the Petition and Respondent is not in
default for failing to do so. See Fed. R. Civ. P. 55 (governing the entry of default
by the Clerk or the court); see also Rule 5 (a) of the Rules Governing Section 2254
Cases (“The respondent is not required to answer the petition unless a judge so
orders.”). Moreover, there is no “sum certain” at issue in this habeas proceeding,
and thus, there is no basis to enter a default judgment. Petitioner’s Request for
Default Judgment by the Clerk is DENIED.
Petitioner’s Motion for An Order to Award, Recompense or/and Compensate
is incoherent. Petitioner wants his “claims to be put into action by means of debt
validated, supreme law of land, oath in office to be sent to address bellow [sic].
And put in the account.” Mot., ECF No. 6. Petitioner’s claims will be “put into
action” after he sufficiently clarifies them as discussed above. Moreover, a writ of
habeas corpus will have no effect regarding debts owed in the state court.
Petitioner’s Motion for An Order to Award, Recompense or/and Compensate is
DENIED.
Finally, Petitioner’s TRO Motion appears to be directed to the Hawaii
Second Circuit Court. See ECF 4 (“Plaintiff . . . hereby moves this Court Second
Circuits for the issurance [sic] of an Order to Show Cause why the term and then
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Terminate of Probation and discharge me from the jurisdiction of the Court dated
on October 20, 2016.”). Petitioner seeks relief pursuant to Hawaii Revised Statutes
§§ 706-625(a) and 706-630. Petitioner fails to support the TRO Motion with any
facts establishing his likelihood of success on the merits of his claims and
irreparable harm in the absence of preliminary relief. See Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7 (2008). Because the Petition has been dismissed (albeit
with leave to amend), there are no facts before the Court to support issuing
injunctive relief in this case. Petitioner’s Motion for Temporary Restraining Order
and/or Preliminary Injunction is DENIED.
IV.
(1)

CONCLUSION

The Petition is DISMISSED without prejudice. Petitioner is

DIRECTED to file an amended petition on court forms. He must name a proper
respondent, detail the facts underlying his claims, assert the federal bases for his
claims, address the exhaustion of his claims, demonstrate that the Petition is timely
(by including the date his probation was revoked and any facts relating to tolling),
and sign the amended petition under penalty of perjury on or before June 9, 2017.
(2)

Petitioner’s (1) Motion for Temporary Restraining Order and/or

Preliminary Injunction, ECF No. 4; (2) Motion for an Order to Award

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Recompense, or/and Compensate, ECF No. 6; and (3) Request for Default
Judgment by the Clerk, ECF No. 7, are DENIED.
(3)

The Clerk is DIRECTED to send Petitioner a blank petition for writ of

habeas corpus so he can comply with the instructions in this Order.
(4)

Failure to timely file an amended petition will result in dismissal of

this action without prejudice.
IT IS SO ORDERED.
DATED: May 4, 2017 at Honolulu, Hawai’i.

Hardy K. Ah Puck, Jr. vs. State of Hawaii; Civil No. 17-00173 DKW-KJM;
ORDER DISMISSING PETITION WITH LEAVE TO AMEND AND
DENYING PENDING MOTIONS
Ah Puck v. Hawaii,1:17-cv-00173 DKW-KJM; OSC 2017 Ah Puck 17-173 dsm pet Resp, exh, sol, dny tro, mots)

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