Hodges v. State of Hawaii
ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF APPEALABILITY re: 1 . Signed by JUDGE SUSAN OKI MOLLWAY on 8/17/2017. (afc) Conclusion: "Hodges's Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus is DISMISSED without prejudice but without leave to amend. Any pending motions are DISMISSED as moot. Any request for a certificate of appealability is DENIED."CERTIFICATE OF SERVICEParticipant s 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 will be served by first class mail on August 21, 2017.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HAROLD TOMLIN HODGES, JR., )
STATE OF HAWAII,
CIV. NO. 17-00323 SOM-KSC
ORDER DISMISSING PETITION
AND DENYING CERTIFICATE OF
ORDER DISMISSING PETITION AND DENYING
CERTIFICATE OF APPEALABILITY
Before the court is Petitioner Harold Tomlin
Hodges, Jr.’s Petition Under 28 U.S.C. § 2241 for a
Writ of Habeas Corpus.
ECF No. 1.
his conviction in the Circuit Court of the Second
Circuit (“circuit court”), State of Hawaii, in State v.
Hodges, CR. No. 16-1-0422(1).
See eCourt Kokua:
2PC161000422(1) (last visited 8/17/2017).
Petition is DISMISSED without prejudice but without
leave to amend.
Any pending motions are DENIED as
A certificate of appealability is DENIED.
Rule 4 of the Rules Governing Section 2254 Cases,
which applies equally to habeas petitions brought
pursuant to 28 U.S.C. § 2241,1 requires the court to
summarily dismiss a habeas petition “[i]f it plainly
appears from the petition and any attached exhibits
that the petitioner is not entitled to relief in the
Hodges filed this Petition on July 10, 2017,
without payment of the civil filing fee or an
application to proceed in forma pauperis.
ECF No. 1.
On July 11, 2017, the court issued a Deficiency
Order that instructed Hodges to pay the filing fee or
submit an in forma pauperis application within twentyeight days.
Order, ECF No. 2.
The time has passed for
complying with this Order and Hodges has not paid the
fee nor sought in forma pauperis status.
See Rule 1(b) of the Rules Governing § 2254 Cases.
Publicly available records reveal that Hodges was
convicted and sentenced in CR. No. 16-1-0422(1) on or
about December 5, 2016.
See 2PC161000422(1), eCourt
January 31, 2017, Hodges filed a notice of appeal.
On February 24, 2017, Hodges was appointed counsel or
After a temporary remand to the
circuit court by the Intermediate Court of Appeals
(“ICA”), an amended judgment of conviction was entered
on May 22, 2017.
The case remains on direct appeal.
There are numerous reasons Hodges’s Petition must
be dismissed without prejudice.
Under traditional principles of comity and
federalism, federal courts may not interfere with
pending state criminal proceedings absent extraordinary
Younger v. Harris, 401 U.S. 37, 45–46
(1971); Middlesex Cty. Ethics Comm. v. Garden State Bar
Ass’n, 457 U.S. 423, 431 (1982).
These concerns are
particularly important in the habeas context when a
state prisoner’s conviction may be reversed on appeal,
rendering the federal issue moot.
Tompkins, 716 F.2d 632, 634 (9th Cir. 1983).
extraordinary circumstances, abstention under Younger
is required when: (1) state judicial proceedings are
ongoing, (2) the state proceedings implicate important
state interests, (3) the federal plaintiff is not
barred from litigating federal constitutional issues in
the state proceeding, and (4) the federal court action
would enjoin the proceeding or have the practical
effect of doing so, i.e., would interfere with the
state proceeding in a way that Younger disapproves of.
San Jose Silicon Valley Chamber of Commerce Political
Action Comm. v. City of San Jose, 546 F.3d 1087, 1092
(9th Cir. 2008).
Normally, if Younger abstention
applies, a court may not retain jurisdiction but should
dismiss the action.
Juidice v. Vail, 430 U.S. 327, 337
(1977); see H.C. ex rel. Gordon v. Koppel, 203 F.3d
610, 613 (9th Cir. 2000) (“When the case is one in
which the Younger doctrine applies, the case must be
However, when exceptions or extraordinary
circumstances exist, a district court may exercise
jurisdiction even when the Younger abstention criteria
See Baffert v. Cal. Horse Racing Bd., 332
F.3d 613, 621 (9th Cir. 2003).
Exceptions to Younger
abstention include state proceedings conducted in bad
faith or to harass the litigant, and a statute at issue
that flagrantly and patently violates express
constitutional prohibitions in every clause, sentence
Id. (citing Younger, 401 U.S. at 53).
Younger is satisfied here, and no exception or
extraordinary circumstance has been shown justifying
Hodges’s criminal proceedings
involve important state interests and are currently
pending on direct appeal in the state court.
v. Robinson, 479 U.S. 36, 49 (1986) (citing Younger,
401 U.S. at 44–45) (“This Court has recognized that the
States’ interest in administering their criminal
justice systems free from federal interference is one
of the most powerful of the consideration that should
influence a court considering equitable types of
Hodges is not barred from litigating any
federal constitutional issues in state court and has an
appointed attorney to ensure this possible litigation.
Finally, relief here would interfere with Hodges’s
state criminal proceedings in a manner disapproved of
by Younger, as it would insert federal court oversight
into an ongoing state criminal proceeding.
The standard for the bad faith exception to Younger
abstention is that the prosecution was brought without
a reasonable expectation of obtaining a valid
Baffert, 332 F.3d at 621.
Hodges has been
convicted and cannot meet that standard.
Hodges’s claimed constitutional violation does not
reveal that his rights are being flagrantly, patently,
and expressly violated, and “does not, by itself,
constitute an exception to the application of Younger
Hodges’s claims can be raised on direct appeal, and
Hodges also alleges that he is currently raising them
in a state post-conviction petition, brought under Rule
40 of the Hawaii Rules of Penal Procedure.
Petition must be dismissed without prejudice pursuant
to the Younger abstention doctrine.
Other Procedural Barriers
The Petition faces other barriers to relief.
First, a federal court shall not grant a habeas
petition on behalf of a person in custody pursuant to a
state court judgment unless “the applicant has
exhausted the remedies available in the courts of the
28 U.S.C. § 2254(b)(1)(A).
requirement may be satisfied: (1) by providing the
highest state court with an opportunity to rule on the
merits of the claim, or (2) by showing that at the time
the petitioner files the habeas petition in federal
court no state remedies are available.
Cupp, 693 F.2d 859, 862 (9th Cir. 1982) (citations
In habeas corpus cases, “federal courts may
consider sua sponte whether the defendant has exhausted
Stone v. City and Cty. of San
Francisco, 968 F.2d 850, 856 (9th Cir. 1992) (citing
Granberry v. Greer, 481 U.S. 129, 134 (1987)).
is on direct appeal, claims he is also pursuing post7
conviction relief, and clearly has not exhausted the
remedies available to him in the state courts.
the ICA nor the Hawaii Supreme Court has had an
opportunity to rule on the merits of Hodges’s claims,
and he makes no showing that he lacks state remedies.
The Petition is therefore also dismissed for failure to
Second, 28 U.S.C. § 2254 is the exclusive avenue
for a state prisoner to challenge the constitutionality
of his detention, while “§ 2241 is available for
challenges by a state prisoner who is not in custody
pursuant to a state court judgment — for example, a
defendant in pre-trial detention or awaiting
White v. Lambert, 370 F.3d 1002, 1006
(9th Cir. 2004); see also Stow v. Murashige, 389 F.3d
880, 886 (9th Cir. 2004) (holding that § 2241 is
available to state prisoners only in those situations
“not covered by the limitations in § 2254”).
in custody pursuant to a Hawaii state court conviction
and may not proceed under § 2241.
Third, 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) (holding that “failure to
name the correct respondent destroys personal
The correct respondent is normally the
warden of the facility in which the petitioner is
incarcerated, or the chief officer in charge of state
Brittingham v. United States, 982
F.2d 378, 379 (9th Cir. 1992).
Hodges fails to name
any state officer having custody of him.
Finally, Hodges has neither paid the civil filing
fee nor sought in forma pauperis status.
He may not
proceed with this action without payment.
Hodges’s Petition Under 28 U.S.C. § 2241 for a Writ
of Habeas Corpus is DISMISSED without prejudice but
without leave to amend.
Any pending motions are
DISMISSED as moot.
Any request for a certificate of
appealability is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 17, 2017.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Hodges v. Hawaii, 1:17-cv-00323 SOM-KSC; Habeas 2017 Hodges 17-323 som (dsm 2241 exh,
Younger, not pretr dtn’ee, imp resp)
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