Kehano v. Harrington et al

Filing 4

DISMISSAL ORDER AND DENIAL OF CERTIFICATE OF APPEALABILITY. Signed by JUDGE LESLIE E. KOBAYASHI on 04/28/2017. -- To the extent Kehano's Petition was "mistakenly submitted" to this court, the Clerk is DIRECTED t o refer the Petition to the Ninth Circuit Court of Appeals. See Ninth Cir. Rule 22-3 ("If a second or successive petition or motion, or an application for authorization to file such a petition or motion, is mistakenly submitted to the district c ourt, the district court shall refer it to the court of appeals."). The Clerk shall send a copy of the Petition and this Order to the Clerk of the U.S. Court of Appeals for the Ninth Circuit. The Clerk shall also provide Kehano with the form rec ommended by the Ninth Circuit for filing an To the extent Kehano's Petition was "mistakenly submitted" to this court, the Clerk is DIRECTED to refer the Petition to the Ninth Circuit Court of Appeals. See Ninth Cir. Rule 22-3 (If a sec ond or successive petition or motion, or an application for authorization to file such a petition or motion, is mistakenly submitted to the district court, the district court shall refer it to the court of appeals.). The Clerk shall send a copy of th e Petition and this Order to the Clerk of the U.S. Court of Appeals for the Ninth Circuit. The Clerk shall also provide Kehano with the form recommended by the Ninth Circuit for filing an Application for Leave to File Second or Successive Petition Un der 28 U.S.C. § 2254 - - To the extent the pleading is intended as a civil complaint it is DISMISSED without prejudice for Kehano's failure to concurrently pay the civil filing fee when he commenced this action. See 28 U.S.C. § 1915(g). The Clerk shall enter judgment and close the file. (eps, )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 served by first class mail on May 1, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ROLAND I. KEHANO, SR.,
Petitioner,
vs.
SCOTT HARRINGTON, et
al.,
Respondent.
________________________

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CIV. NO. 17-00177 LEK-KSC
DISMISSAL ORDER AND
DENIAL OF CERTIFICATE OF
APPEALABILITY

DISMISSAL ORDER AND DENIAL
OF CERTIFICATE OF APPEALABILITY
Before the court is pro se Petitioner Roland
Kehano’s most recent pleading.

It is unclear whether

this document is intended as a petition for writ of
habeas corpus under 28 U.S.C. § 2254, or as a civil
rights complaint brought pursuant to 42 U.S.C. § 1983.
In either case, the document makes little sense.
Kehano has neither paid the civil filing fee for
commencing an action nor submitted an in forma pauperis
application.
For the following reasons, this action is DISMISSED
without prejudice but without leave granted to amend.

I.

PETITION FOR WRIT OF HABEAS CORPUS

Kehano refers to himself as “Applicant-Petitioner,”
names his warden as Respondent, and asks “[t]he Court
to entertain this Complaint of Habeas Corpus.”
1, PageID #2.

ECF No.

He discusses a previous “Second or

Successive habeas Corpus” petition, apparently arguing
that it was dismissed because he had acquired “4
strikes,” pursuant to 28 U.S.C. § 1915(g).

Id.

He

refers to jury instructions and an “offense of Seconddegree Murder to First-Degree Murder,” although it is
unclear whether he is speaking of his own trial.
at PageID #3.

Id.

He mentions minimum term hearings held

before the Hawaii Paroling Authority (HPA) in 1997 and
1998, says these hearings deprived him of due process
and violated double jeopardy (without any statement of
facts to support this claim), and says the HPA set his
mandatory minimum term at fifteen years.

These random

statements support a finding that Kehano seeks habeas
relief in this action.
To the extent Kehano is challenging his present
conviction and sentence, however, this action must be
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dismissed without prejudice as second or successive
pursuant to 28 U.S.C. § 2244(a).

Kehano has previously

brought a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, in which he challenged his present conviction
and sentence.

See Kehano v. Corr. Corp. of Am., Civ.

No. 04-00376 HG, ECF No. 37 (D. Haw. June 20, 2004).
That petition was not dismissed pursuant to 28 U.S.C.
§ 1915(g), as he vaguely alleges, however, but as
time-barred.

The district and appellate courts denied

certificates of appealability.

Id; App. Ord, ECF No.

40 (July 26, 2005).
Kehano has since filed several additional federal
habeas petitions and motions to file second or
successive petitions.

See, e.g, Kehano v. Harrington,

Civ. No. 1:16-cv-00589 LEK (D. Haw. 2016) (referred to
Ninth Circuit Court of Appeals); Kehano v. Sequeira,
Civ. No. 1:16-cv-00006 JMS (D. Haw. 2016) (same);
Kehano v. Espinda, Civ. No. 1:12-cv-00526 JMS (D. Haw.
2012) (transferred to Ninth Circuit); Kehano v.
Raffetto, Civ. No. 1:09-cv-00379 (D. Haw. 2009)
(transferred to Ninth Circuit); Kehano v. Dep’t of
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Public Safety, Civ. No. 1:05-cv-00339 (D. Haw. 2005)
(dismissing petition and referring to Ninth Circuit).
The court lacks jurisdiction to consider Kehano’s
Petition without authorization from the Ninth Circuit.
See 28 U.S.C. § 2244(b)(3)(A); Rishor v. Ferguson, 822
F.3d 482, 490 (9th Cir. 2016) (holding failure to
obtain appellate authorization for successive petition
is jurisdictional).
II.

CIVIL COMPLAINT

Kehano also calls his pleading a “Complaint,” and
challenges a recent decision in State of Hawaii v.
Trump, Civ. No. 1:17-cv-00050 DKW (D. Haw. 2017)
(enjoining presidential executive order).

Kehano

discusses his military service in Vietnam and complains
that Muslim immigrants will be allowed to settle in
Hawaii if the Hawaii Attorney General is successful in
Civ. No. 1:17-cv-00050.
A prisoner may not bring a civil action or appeal a
civil judgment if he has:
on 3 or more prior occasions, while
incarcerated . . ., brought an action or
appeal in a court of the United States
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that was dismissed on the grounds that it
is frivolous, malicious, or fails to state
a claim upon which relief may be granted,
unless [he] is under imminent danger of
serious physical injury.
28 U.S.C. § 1915(g).
To the extent Kehano intends this document as a
civil complaint, he may not proceed without concurrent
payment of the civil filing fee because he has accrued
three strikes pursuant to 28 U.S.C. § 1915(g).

See

Kehano v. Espinda, Civ. No. 1:12-cv-00529 JMS (D. Haw.
2012) (dismissed for failure to state a claim); Kehano
v. Pioneer Mill Co., Civ. No. 1:12-cv-448 (D. Haw.
2012) (same); Kehano v. Hawaii, Civ. No. 2:05-cv-02475
(D. Ariz. 2005) (same); Kehano v. Hawaii, 2:04-cv-00935
(D. Ariz. 2004) (same).

Kehano has been notified of

his strikes, indeed, he refers to them in his pleading.
Kehano’s allegations regarding immigration
irregularities in Hawaii, and challenges to the
injunction filed in Civ. No. 1:17-cv-00050 are
frivolous and do not show that he was in imminent
danger of serious physical injury when he commenced

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this action.

Kehano may not proceed without concurrent

payment of the civil filing fee.
III.
(1)

CONCLUSION

To the extent this action seeks habeas corpus

relief pursuant to 28 U.S.C. § 2254, it is DISMISSED
without prejudice for lack of jurisdiction pursuant to
Rule 4 of the Rules Governing Section 2254 Cases in the
U.S. District Courts.
(2)

To the extent Kehano’s Petition was

“mistakenly submitted” to this court, the Clerk is
DIRECTED to refer the Petition to the Ninth Circuit
Court of Appeals.

See Ninth Cir. Rule 22-3 (“If a

second or successive petition or motion, or an
application for authorization to file such a petition
or motion, is mistakenly submitted to the district
court, the district court shall refer it to the court
of appeals.”).

The Clerk shall send a copy of the

Petition and this Order to the Clerk of the U.S. Court
of Appeals for the Ninth Circuit.
The Clerk shall also provide Kehano with the form
recommended by the Ninth Circuit for filing an
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Application for Leave to File Second or Successive
Petition Under 28 U.S.C. § 2254 or Motion Under 28
U.S.C. § 2255.
(3)

To the extent a certificate of appealability

is required, it is DENIED because “jurists of reason”
would not “find it debatable” that this court lacks
jurisdiction over this second or successive Petition
without authorization from the Ninth Circuit.

Slack v.

McDaniel, 529 U.S. 473, 484 (2000).
(4) To the extent the pleading is intended as a
civil complaint it is DISMISSED without prejudice for
Kehano’s failure to concurrently pay the civil filing
fee when he commenced this action.
§ 1915(g).

See 28 U.S.C.

The Clerk shall enter judgment and close

the file.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 28, 2017.

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

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