Carter v. Ornellas et al

Filing 10

ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY re 1 - Signed by JUDGE DERRICK K. WATSON on 11/13/2017. " The Petition is DISMISSED with prejudice as untimely pursuant to 28 U.S.C. & #167; 2244(d). A certificate of appealability is DENIED. The Clerk of Court shall enter judgment and close the file." (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). Samuel Carter served by first class mail to the address of record on November 13, 2017.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SAMUEL CARTER, #A0247045,

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Petitioner,
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vs.
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SEAN ORNELLAS,
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Respondent.
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_____________________________ )

CIV. NO. 17-00356 DKW-RLP
ORDER DISMISSING PETITION
FOR WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF
APPEALABILITY

Before the court is pro se petitioner Samuel Carter’s Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus. ECF No. 1. Carter challenges his
consecutive, extended-term sentences imposed by the Circuit Court of the First
Circuit, State of Hawaii (“circuit court”) in State v. Carter, CR. No. 99-2002, on
March 16, 2004. After careful consideration of the entire record, the court
DISMISSES the Petition with prejudice as untimely. Any request for a certificate
of appealability (“COA”) is DENIED.
I. BACKGROUND
On March 2, 2000, Carter was convicted of Theft in the Second Degree
(Count 1), Promoting a Dangerous Drug in the Third Degree (Count 2), and
Unlawful Use of Drug Paraphernalia (Count 3). See Resp’t App. B, ECF No. 8-2.
The circuit court sentenced Carter to an extended ten-year term on Count 1, to run

consecutively to two extended ten-year concurrent terms on Counts 2 and 3.
Resp’t App. C, ECF No. 8-3. The Hawaii Supreme Court affirmed Carter’s
conviction on September 23, 2003. Resp’t App. G, ECF No. 8-7.
On March 16, 2004, the circuit court issued a Second Amended Judgment;
Guilty Conviction and Sentence. Resp’t App. H. The circuit court resentenced
Carter to an extended ten-year term on Count 1, with no mandatory minimum, to
be served consecutively to an extended ten-year term on Count 2, with a five-year
mandatory minimum, to be served concurrently with an extended ten-year term on
Count 3, with no mandatory minimum.
On or about September 20, 2006, Carter was released on parole. Resp’t
App. I, ECF No. 8-9. Nearly nine years later, on or about January 16, 2015,
Carter’s parole was revoked. Id. On his Warrant of Arrest, the Hawaii Paroling
Authority noted that Carter’s maximum parole term expired November 2, 2018.
Id.
On March 4, 2015, the Department of Public Safety notified Carter that he
had been over-credited pre-sentence credits to his sentence, and that his maximum
release date had been recalculated as September 26, 2019. Id., PageID #111. On
December 10, 2015, Carter’s attorney on appeal, Dwight C.H. Lum, Esq., wrote
the Department of Public Safety to explain that this calculation was incorrect, and
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to request that Carter’s maximum term date be amended to its original date,
November 2, 2018. Id., PageID #114-15.
On September 2, 2016, Carter filed a state post-conviction petition pursuant
to Rule 40 of the Hawaii Rules of Penal Procedure (“HRPP”) (“Rule 40 Petition”),
Carter v. State, S.P.P. No. 16-1-0024. Resp’t App. I, ECF No. 8-9. Carter argued
that his sentence was illegal under Apprendi v. New Jersey, 530 U.S. 466 (2000),1
and that the Department of Public Safety had illegally recalculated his maximum
release date. After finding that Carter may have a colorable claim under Apprendi,
the circuit court appointed him counsel. Resp’t App. J, ECF No. 8-10.
On June 27, 2017, the circuit court denied Carter’s Rule 40 Petition. Resp’t
App. K, ECF No. 8-11. The circuit court first found that Carter’s challenge to the
change in his maximum release date was moot, because it had already been reset to
November 2, 2018. Id., PageID #141. The circuit court then rejected Carter’s
Apprendi claim, because his sentences were final before the Hawaii Supreme Court

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Apprendi holds that any fact that increases the penalty for a crime beyond the prescribed
statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and
proved beyond a reasonable doubt. 530 U.S. at 490.
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had determined that Hawaii’s extended term sentencing scheme was
unconstitutional in State v. Maugaotega, 115 Haw. 432 (2007).2 Id., PageID #14243.
On July 26, 2017, Carter filed a notice of appeal in the Intermediate Court
of Appeals (“ICA”), Resp’t App. L, ECF No. 8-12; Carter v. State, CAAP-170000569 (Haw. App. 2017), avail. at: https://jimspss1.courts.state.hi.us/JEFS. This
appeal is currently pending before the ICA.
Two days before filing his notice of appeal, on July 24, 2017, Carter filed
the present federal Petition. ECF No. 1. Carter asserts that (1) his sentences
violate the rule set forth in Apprendi, because the judge, rather than the jury,
determined the bases for setting his extended, consecutive sentences; and (2) his
trial, sentencing, and appellate attorneys were ineffective. See Pet., ECF No. 1.

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Under Hawaii law, a petitioner cannot collaterally attack an extended term sentence
based on Apprendi if the petitioner’s conviction was final on direct review before the Supreme
Court decided Cunningham v. California, 549 U.S. 270 (2007), when “it became clear that the
Apprendi decision meant that Hawaii’s extended term sentencing scheme was unconstitutional.”
Mara v. State, 139 Haw. 414, 418-20 (Haw. App. 2017). This issue is currently before the
Hawaii Supreme Court. See Batalona v. State, 2017 WL 2797654 (Haw. App. June 28, 2017),
cert. granted, 2017 WL4564374 (Oct. 13, 2017); Preble v. State, 2017 WL 1050339 (Haw. App.
Mar. 17, 2017), cert. granted, 2017 WL 2875674 (July 5, 2017).
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II. 28 U.S.C. § 2244
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a one-year statute of limitation applies to all habeas petitions filed by
prisoners in state custody, subject to certain tolling conditions. See 28 U.S.C.
§§ 2244(d).
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.

28 U.S.C. § 2244(d)(1).
Because Carter’s judgment, conviction and sentence were amended on
March 16, 2004, the statute of limitation began running on his claims on March 17,
2004, and expired one year later on March 16, 2005, unless Carter is entitled to a
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later date for commencement of the limitation period under § 2244(d)(1)(B-D), or
tolling under § 2244(d)(2). See Burton v. Stewart, 549 U.S. 147, 156 (2007)
(“‘Final judgment in a criminal case means sentence. The sentence is the
judgment.’”) (quoting Berman v. United States, 302 U.S. 211, 212 (1937)).
A petitioner may also be entitled to equitable tolling upon a showing of
extraordinary circumstances and diligence. See Pace v. DiGuglielmo, 544 U.S.
408, 418 n.8 (2005) (“Generally, a litigant seeking equitable tolling bears the
burden of establishing two elements: (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way.”);
Randle v. Crawford, 578 F.3d 1177, 1186 (9th Cir. 2009).
III. DISCUSSION
Carter commenced this federal action on July 10, 2017, when he gave the
Petition to prison authorities for mailing to the court. See Rule 3(d) of the Rules
Governing Section 2254 Cases in the United States District Courts; Fed. R. App. P.
25(a)(2)(c). The Court notified Carter that his Petition appears time-barred and
that he bears the burden of establishing either an alternative date for
commencement of the statute of limitation or that he is entitled to equitable tolling.
See Preliminary Order to Show Cause, ECF No. 5; see also, Pace, 544 U.S. at 418.

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Carter filed his Response on September 12, 2017. The State filed its Response on
October 23, 2017. See ECF Nos. 7, 8.
A.

No Basis for an Alternate Date for Commencing the Statute
Carter first argues that HRPP 40 has no statute of limitation for any claim

alleging “that the judgment was obtained or sentence imposed in violation of the
constitution of the United States or of the State of Hawai`I.” HRPP 40(a)(1)(I).
Carter is correct - there is no statute of limitation under Hawaii law for such
claims. Hawaii’s Rules of Penal Procedure, however, have no effect on the federal
statute of limitation set forth in 28 U.S.C. § 2244 regarding the timeliness of
federal petitions. Carter did not seek state post-conviction relief on any basis until
September 2, 2016, more than eleven years after the statute of limitation had
expired on his conviction. Filing a post-conviction petition after the statute of
limitation has expired does not reinitiate the limitation period. See Ferguson v.
Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jiminez v. Rice, 276 F.3d 478, 482
(9th Cir. 2001) (same). Carter’s Rule 40 Petition neither tolled nor restarted the
already expired statute of limitation under § 2244(d)(2).
Carter next argues that his sentencing and appellate attorneys were
ineffective because they failed to raise an Apprendi argument at either proceeding.
He also reasserts his claim that his trial attorney was ineffective. These arguments
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are irrelevant to whether Carter is entitled to an alternative date for commencement
of the statute of limitation under § 2244(d)(1). That is, the actions of Carter’s
criminal defense attorneys do not constitute state action that impeded his ability to
file a federal petition within the past thirteen years under § 2244(d)(1)(B). See
Polk Cty. v. Dodson, 454 U.S. 312, 320–25 (1981) (holding a public defender, and
by extension any criminal defense attorney, “does not act under color of state law
when performing a lawyer’s traditional functions as counsel” to a criminal
defendant). Section 2244(d)(1)’s other provisions do not apply.
Moreover, as the Hawaii court’s have repeatedly made clear, an attorney
who failed to raise an Apprendi argument before Cunningham or Maugaotega were
decided did not provide ineffective assistance of counsel in Hawaii, because such a
claim would have been rejected. See Mara, 139 Haw. at 420 (“Given the Hawai`i
Supreme Court’s repeated rejection of Apprendi-based challenges to the
constitutionality of Hawai`i’s extended term sentencing scheme prior to
Maugaotega II, we also conclude that Mara’s appellate counsel was not ineffective
for failing to assert an Apprendi claim on direct appeal.”); Preble, 139 Haw. at *3
(rejecting ineffective assistance of appellate counsel claim, because an “Apprendi
claim would have been denied on direct appeal, so appellate counsel was not

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ineffective for failing to raise an Apprendi claim to challenge Preble’s extended
term sentences”).
B.

No Basis For Equitable Tolling
Equitable tolling is rarely justified, Spitsyn v. Moore, 345 F.3d 796, 799 (9th

Cir. 2003), because the term “‘extraordinary circumstances’ necessarily suggests
the doctrine’s rarity,” and implies “that an external force must cause the
untimeliness, rather than . . . merely ‘oversight, miscalculation or negligence on
[the petitioner’s] part, all of which would preclude the application of equitable
tolling.’” Waldron- Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009
(quoting Harris v. Carter, 515 F.3d 1051, 1054-55 (9th Cir. 2008)). “The
petitioner must show that ‘the extraordinary circumstances were the cause of his
untimeliness and that the extraordinary circumstances made it impossible to file a
petition on time.’” Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010) (quoting
Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009)); Miranda v. Castro, 292 F.3d
1063, 1066 (9th Cir. 2002) (stating, “‘the threshold necessary to trigger equitable
tolling is very high, lest the exceptions swallow the rule.’”) (citation omitted).
Carter provides no argument or basis for equitable tolling of the statute of
limitation. Moreover, the record shows that Carter was on parole for nearly nine
years, free from most, if not all, of the difficulties that an incarcerated petitioner
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faces, yet did nothing to pursue his claims. Carter fails to show that he is entitled
to equitable tolling of the statute of limitation. See Pace, 544 U.S. at 418.
IV. CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2254 Cases requires a district
court to rule on whether a petitioner is entitled to a certificate of appealability in
the same order in which the petition is denied. See also, Fed. R. App. P. 22(b).
When a claim is dismissed on procedural grounds, the court must decide whether
“jurists of reason would find it debatable whether the district court was correct in
its procedural ruling.” Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012) (quotation
omitted). Carter fails to make a substantial showing that a reasonable jurist would
find debatable or wrong the dismissal of his Petition as time-barred. Any request
for a certificate of appealability is denied.
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V. CONCLUSION
The Petition is DISMISSED with prejudice as untimely pursuant to 28
U.S.C. § 2244(d). A certificate of appealability is DENIED. The Clerk of Court
shall enter judgment and close the file.
IT IS SO ORDERED.
DATED: November 13, 2017 at Honolulu, Hawaii.

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

Samuel Carter v. Sean Ornellas; Civil No. 17-00356 DKW-RLP; ORDER
DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND
DENYING CERTIFICATE OF APPEALABILITY
Carter v. Ornellas, No. 1:17-00356 DKW-RLP; Hab. 17 Carter 17-356 (sol)

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