Ventrella v. Wead

Filing 12

ORDER: DENYING IN PART AND DISMISSING IN PART "PETITION UNDER 28 U.S.C. § 2254 FOR WRIT OF HABEAUS [SIC] CORPUS BY A PERSON IN STATE CUSTODY"; AND DENYING A CERTIFICATE OF APPEALABILITY re 1 - Signed by JUDGE LESLIE E. KOBAYASHI on 11/14/2023. For the foregoing reasons, Ventrella's "Petition Under 28 U.S.C. § 2254 for Writ of Habeaus [sic] Corpus by a Person in State Custody," filed October 13, 2022, is HEREBY DENIED as to Gro und One and DISMISSED WITH PREJUDICE as to Ground Two. In addition, this Court DENIES a certificate of appealability. There being no remaining issues in this case, the Clerk's Office is DIRECTED to enter final judgment and close this case 15 days after this Order is filed, unless Ventrella files a timely motion for reconsideration of this Order. (eta)

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
MICHAEL VENTRELLA,

CIV. NO. 22-00448 LEK-RT

Plaintiff,
vs.
SHAWN WEAD, WARDEN;
Defendant.
ORDER: DENYING IN PART AND DISMISSING IN PART “PETITION UNDER
28 U.S.C. § 2254 FOR WRIT OF HABEAUS [SIC] CORPUS BY A PERSON
IN STATE CUSTODY”; AND DENYING A CERTIFICATE OF APPEALABILITY
Before the Court is pro se Petitioner Michael
Ventrella’s (“Ventrella”) “Petition Under 28 U.S.C. § 2254 for
Writ of Habeaus [sic] Corpus by a Person in State Custody”
(“Petition”) filed on October 13, 2022.

[Dkt. no. 1.]

On

October 24, 2022, an Order to Show Cause and Answer Petition
(“OSC”) was issued, directing Respondent Shawn Wead, Warden of
the Saguaro Correctional Center in Eloy, Arizona (“Respondent”)
to file an answer, pursuant to Rule 5 of the Rules Governing
Section 2254 Proceedings for the United States District Courts.
[Dkt. no. 5.]

Respondent filed his response to the Petition on

December 5, 2022 (“Answer”), and Ventrella filed his reply in
support of the Petition on March 28, 2023 (“Reply”).
nos. 6, 11.]

[Dkt.

Ventrella’s Petition is hereby denied in part and

dismissed, with prejudice, in part, for the reasons set forth
below.

Further, a certificate of appealability is also denied.
BACKGROUND
Ventrella was originally charged in the State of

Hawai`i Circuit Court of the Third Circuit (“state court”) with
fifteen drug and firearm offenses.

On February 20, 2018, he

pled guilty to one count of attempted promotion of a dangerous
drug in the first degree, in violation of Haw. Rev. Stat.
§§ 705-500 and 712-1241(1)(a).

On April 25, 2018, Ventrella was

sentenced to an indeterminate period of twenty years of
imprisonment.

[Answer, Declaration of Trista N. Speer (“Speer

Decl.”), Exh. 2 (Judgment of Conviction and Sentence filed on
4/25/18 in State v. Ventrella, CR No. 3CPC-17-0000531).]

The

Hawaii Paroling Authority (“HPA”) held a hearing to determine
Ventrella’s minimum term on January 14, 2019.

[Speer Decl.,

Exh. 1 (Ventrella’s Petition to Vacate, Set Aside, or Correct
Illegal Sentence Through a Writ of Habeas Corpus Pursuant to
HRPP Rule 40, filed 11/18/19 in the state court, Ventrella v.
State, Case No. 3CPN-19-0000003 (“Rule 40 Petition”)) at
PageID.204-19 (App’x E (transcript of 1/14/19 HPA hearing)).]
Ventrella, who was represented by William Reece, Esq., appeared
at the audio recorded minimum term hearing.
05.]

[Id. at PageID.204-

The HPA set Ventrella’s minimum term of imprisonment at
2

eleven years.

[Speer Decl., Exh. 1 at PageID.193 (App’x C

(Hawaii Paroling Authority Notice and Order of Fixing Minimum
Term(s) of Imprisonment, dated 1/15/19 (“HPA Notice”))).]
On November 18, 2019, Ventrella filed a petition for
post-conviction relief pursuant to Hawai`i Rules of Penal
Procedure (“Rule 40 Petition”) in the state court.
Decl., Exh. 1 (Rule 40 Petition).]

[Speer

Ventrella argued that his

minimum term was unlawful because: 1) it violated the United
States Supreme Court’s ruling in Alleyne v. United States, 570
U.S. 99 (2013); and 2) it violated Haw. Rev. Stat. §§ 706-669(6)
and (8).
On December 2, 2019, Ventrella filed a motion seeking
the withdrawal or discharge of Mr. Reece so that Ventrella could
obtain new counsel (“Withdrawal Motion”).

[Speer Decl.,

Exh. 4.]
On May 29, 2020, the state court held a hearing on the
Rule 40 Petition and the Withdrawal Motion.

See generally Speer

Decl., Exh. 9 (Ventrella’s Opening Brief in the appeal from the
Rule 40 proceedings, filed 12/28/20 (“Rule 40 Opening Brief”))
at PageID.365-85 (App’x F (transcript of 5/29/20 hearing)
(“Rule 40 Hrg. Trans.”)).

Ventrella, although still represented

by Mr. Reece at the time, argued his Rule 40 Petition pro se.
See id. at PageID.366-67 (Rule 40 Hrg. Trans. at 2-3).
3

The

state court ultimately denied Ventrella’s Rule 40 Petition,
ruling that Ventrella’s minimum term did not violate his due
process rights nor the holding of Alleyne, and that the minimum
term complied with Haw. Rev. Stat. §§ 706-669(6) and (8).

See

generally Speer Decl., Exh. 7 (Findings of Fact, Conclusions of
Law, and Order Denying Petition for Post-Conviction Relief,
filed 6/15/20 (“Rule 40 FOF/COL”)).
Ventrella’s Withdrawal Motion.

The state court also denied

[Id., Exh. 9 (Rule 40 Opening

Brief), App’x F at PageID.382 (Rule 40 Hrg. Trans. at 18).]

In

its Rule 40 FOF/COL, the state court found that the HPA placed
Ventrella in a Punishment Level III classification and
considered the following significant factors: “(a) Character and
Attitude of Offender with Respect to Criminal Activity or
Lifestyle; and (b) Efforts Made to Live Pro-Social Life prior to
Commitment to Prison.”
at FOF ¶¶ 6(a)-(b).]

[Speer Decl., Exh. 7 (Rule 40 FOF/COL)

The HPA Notice set Ventrella’s minimum

term of imprisonment at eleven years.

[Id. at FOF ¶ 7.]

In the

Rule 40 Petition, Ventrella argued the HPA’s minimum term
increased the penalty for his crime, and therefore any fact that
the minimum term was based upon should have been submitted to,
and found by, the jury.

Ventrella argued the HPA’s reliance on

facts that were not found by the jury violated Alleyne.
FOF ¶ 10.]

[Id. at

The state court rejected this argument because
4

Alleyne does not apply when a state paroling authority
determines an inmate’s minimum term of imprisonment.
COL ¶ 2.]

[Id. at

The state court also rejected Ventrella’s arguments

regarding the contents of the HPA Notice, the criteria that the
HPA considered, the lack of a written justification for its
determination of his minimum term, and the sufficiency of the
transcript of the minimum term hearing.

See id. at COL ¶¶ 5-9.

The state court therefore denied Ventrella’s Rule 40 Petition.
[Id. at pg. 5.]
On July 9, 2020, Ventrella, proceeding pro se, filed a
timely appeal from the Rule 40 FOF/COL.
(Notice of Appeal).

See Speer Decl., Exh. 8

Ventrella argued the state court should

have ordered the HPA to conduct a new minimum term hearing,
pursuant to Lewi v. State, 145 Hawai`i 333, 452 P.3d 330 (2019),
because the HPA: arbitrarily and capriciously designed him as a
Level III offender; imposed a sentence that was disproportionate
to the sentences imposed upon other defendants who were
convicted of the same offense; violated § 706-669(6) by failing
to make a verbatim recording; and erred by failing to consider
his ineffective assistance of counsel claim.

See generally

Speer Decl., Exh. 9 (Rule 40 Opening Brief).
On June 20, 2022, the Intermediate Court of Appeals of
the State of Hawai`i (“ICA”) issued an order affirming the state
5

court’s denial of the Rule 40 Petition.

Ventrella v. State,

NO. CAAP-20-0000448, 2022 WL 2196815 (Hawai`i Ct. App. June 20,
2022).

On August 5, 2022, Ventrella filed an Application for

Writ of Certiorari to the Hawai`i Supreme Court.
Speer Decl., Exh. 14.

See generally

On September 7, 2022, the supreme court

issued an order rejecting Ventrella’s application.

Ventrella v.

State, SCWC-20-0000448, 2022 WL 4092989 (Hawai`i Sept. 7, 2022).
Ventrella’s Petition raises the following grounds:
-the HPA violated his rights under the Fifth, Sixth, Eighth and
Fourteenth Amendments by setting his minimum term based upon
facts that were not submitted to and found by a jury (“Ground
One”); [Petition at PageID.5;] and
-Mr. Reece rendered ineffective assistance during the hearing on
the Rule 40 Petition, resulting in a violation of Ventrella’s
rights under the Fifth, Sixth, and Fourteenth Amendments
(“Ground Two”), [id. at PageID.6].
Ventrella seeks an order vacating his current minimum term and
requiring the HPA to hold a new minimum term hearing.
PageID.12]

[Id. at

In his Reply, Ventrella concedes that he must pursue

his ineffective assistance of counsel argument in the state
court.

[Reply at PageID.506.]
STANDARD
Section 2254 states, in relevant part:
(a) The Supreme Court, a Justice thereof, a
circuit judge, or a district court shall
entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant
to the judgment of a State court only on the
ground that he is in custody in violation of the
6

Constitution or laws or treaties of the United
States.
. . . .
(d) An application for a writ of habeas corpus
on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated on
the merits in State court proceedings unless the
adjudication of the claim-(1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of
the United States; or
(2) resulted in a decision that was based
on an unreasonable determination of the
facts in light of the evidence presented in
the State court proceeding.
28 U.S.C. § 2254(a)-(d).

This district court has stated:

Review under § 2254(d) is “highly
deferential.” See, e.g., Moses v. Payne, 555
F.3d 742, 746 (9th Cir. 2009) (reiterating that
the “standard for evaluating state-court rulings
in the habeas context” is “highly deferential”
(quoting Woodford v. Visciotti, 537 U.S. 19, 24,
123 S. Ct. 357, 154 L. Ed. 2d 279 (2002)). The
U.S. Supreme Court “ha[s] repeatedly held that
‘federal habeas corpus relief does not lie for
errors of state law.’” Wilson v. Corcoran, 562
U.S. 1, 5, 131 S. Ct. 13, 178 L. Ed. 2d 276
(2010) (quoting Estelle v. McGuire, 502 U.S. 62,
67, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991)).
Congress amended § 2254 with the AntiTerrorism and Effective Death Penalty Act of 1996
(“AEDPA”), which “[i]n many ways . . .
represented a sea change in federal habeas law.”
Brown v. Davenport, ––– U.S. ––––, 142 S. Ct.
1510, 1524, 212 L. Ed. 2d 463 (2022). “Congress
instructed [in AEDPA] that, if a state court has
7

adjudicated the petitioner’s claim on the merits,
a federal court ‘shall not’ grant habeas relief
‘unless’ certain conditions are satisfied.” Id.
(citing § 2254(d)). “The question under AEDPA is
thus not whether a federal court believes the
state court’s determination was incorrect, but
whether that determination was unreasonable—’a
substantially higher threshold’ for a prisoner to
meet.” Shoop v. Twyford, ––– U.S. ––––, 142 S.
Ct. 2037, 2043, 213 L. Ed. 2d 318 (2022) (quoting
Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.
Ct. 1933, 167 L. Ed. 2d 836 (2007)). And “[i]f
this standard is difficult to meet, that is
because it was meant to be [by AEDPA].”
Harrington v. Richter, 562 U.S. 86, 102, 131 S.
Ct. 770, 178 L. Ed. 2d 624 (2011).
Stangel v. Wead, CIV. NO. 22-00067 JMS-KJM, 2023 WL 4014666, at
*5 (D. Hawai`i June 15, 2023) (alterations in Stangel).1
Ventrella argues this Court should conduct an
evidentiary hearing on the Petition.

See Petition at PageID.12.

However, this district court has recognized that
the Supreme Court explicitly forbid district
courts from holding evidentiary hearings for
§ 2254 habeas petitions on claims that have been
adjudicated on the merits by a state court.
Cullen v. Pinholster, 131 S. Ct. 1388, 1398
(2011). “After Pinholster, review of claims
adjudicated on the merits under AEDPA must be
based only on ‘the record that was before the
state court that adjudicated the claim on the
merits.’” Gentry v. Sinclair, 705 F.3d 884, 898
(9th Cir. 2012) (quoting Pinholster, 131 S. Ct.
at 1398)[, as amended (Jan. 15, 2013)].

1

Stangel filed an appeal to the Ninth Circuit on July 10,

2023.
8

Wideman v. Thomas, Civil No. 14-00073 DKW-RLP, 2014 WL 4407708,
at *3 (D. Hawai`i Sept. 5, 2014).

Ventrella has not

“demonstrate[d] that the adjudication of his claim based on the
state-court record resulted in a decision ‘contrary to’ or
‘involv[ing] an unreasonable application’ of federal law, a writ
of habeas corpus ‘shall not be granted’ and [this Court’s]
analysis is at an end.”

See Pinholster, 563 U.S. at 203 n.20,

131 S. Ct. at 1411 n.20 (some alterations in Pinholster).

This

Court therefore concludes that an evidentiary hearing is not
necessary in this case.
DISCUSSION
I.

Ground One - Determination of Ventrella’s Minimum Term
Ventrella does not challenge his underlying

conviction, nor his sentence.

Instead, he raises a due process

challenge to the HPA’s determination of his minimum term.
Petition at PageID.5.

See

“To assess [a § 2254 petitioner’s]

Fourteenth Amendment procedural due process claims, we first
examine his asserted property or liberty interests and then
consider whether the state’s procedures were constitutionally
sufficient to protect those interests.”

See Redd v. Guerrero,

84 F.4th 874, 891 (9th Cir. 2023) (citations omitted).
The Hawai`i Supreme Court has recognized that “the
determination of a prisoner’s minimum term is part of the parole
9

process.

Therefore, the same standards should apply to judicial

review of both an HPA decision denying parole and an HPA
decision establishing a minimum term.”

Williamson v. Hawai`i

Paroling Auth., 97 Hawai`i 183, 195, 35 P.3d 210, 222 (2001).
In the context of an action brought pursuant to 42
U.S.C. § 1983, this district court has stated:
A liberty interest “may arise from the
Constitution itself . . . or it may arise from an
expectation or interest created by state laws or
policies.” Wilkinson v. Austin, 545 U.S. 209,
221 (2005). As the Supreme Court has stated,
“[t]here is no right under the Federal
Constitution to be conditionally released before
the expiration of a valid sentence, and the
States are under no duty to offer parole to their
prisoners.” Swarthout v. Cooke, 562 U.S. 216,
220 (2011). Although state law “may create
liberty interests in parole release that are
entitled to protection under the Due Process
Clause,” Bd. of Pardons v. Allen, 482 U.S. 369,
371 (1987), it is well settled that there is no
state-created liberty interest in parole in
Hawaii, Ruh v. Hawaii, 185 F. Supp. 3d 1268, 1272
(D. Haw. 2016) (“It is long settled that Hawaii’s
parole statutes and State law do not create a
liberty interest in parole or release prior to
the expiration of a maximum term.”). . . .
Burns v. Hawai`i, Civ. No. 23-00143 JMS-KJM, 2023 WL 2814623, at
*5 (D. Hawai`i Apr. 6, 2023) (some alterations in Burns).

In

Burns, the district court ruled that, because the petitioner did
not have a protected liberty interest in parole, he had “no
liberty interest in the setting of a minimum term to determine
when, if ever, he is eligible for parole.”
10

Id. (some citations

and internal quotation marks omitted) (citing Williamson v. Haw.
Paroling Auth., 97 Haw. 183, 195, 35 P.3d 210, 222 (2001)).
Similarly, because Ventrella does not have a protected
liberty interest in parole, he does not have a protected liberty
interest in the determination of the minimum term that he must
serve before being eligible for parole.

Ground One of

Ventrella’s Petition is therefore denied.
II.

Ground Two - Ineffective Assistance
As previously noted, Ventrella concedes that he cannot

use this § 2254 proceeding to pursue his claim that Mr. Reece
rendered ineffective assistance during the Rule 40 proceedings.
See Reply at PageID.506.

Section 2254(i) expressly states: “The

ineffectiveness or incompetence of counsel during . . . State
collateral post-conviction proceedings shall not be a ground for
relief in a proceeding arising under section 2254.”
is therefore dismissed with prejudice.

Ground Two

In other words,

Ventrella will not be allowed to file an amended petition to try
cure the defect in Ground Two because it is not possible for him
to cure the defect.

See Jarvis v. Nelson, 440 F.2d 13, 14 (9th

Cir. 1971) (per curiam) (“a petition for habeas corpus should
not be dismissed without leave to amend unless it appears that
no tenable claim for relief can be pleaded were such leave
granted” (citations omitted)).
11

III. Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2254 Cases
in the United States District Courts states “[t]he district
court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.”
A [certificate of appealability] may issue only
if the petitioner “has made a substantial showing
of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). When a constitutional claim
is rejected on its merits, “[t]he petitioner must
demonstrate that reasonable jurists would find
the . . . court’s assessment of the
constitutional claims debatable or wrong.” Slack
v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595,
146 L. Ed. 2d 542 (2000).
Stangel, 2023 WL 4014666, at *23 (some alterations in Stangel).
Reasonable jurists would not find that the rulings in this Order
regarding Ventrella’s Petition are debatable.

A certificate of

appealability therefore will not be issued.
CONCLUSION
For the foregoing reasons, Ventrella’s “Petition Under
28 U.S.C. § 2254 for Writ of Habeaus [sic] Corpus by a Person in
State Custody,” filed October 13, 2022, is HEREBY DENIED as to
Ground One and DISMISSED WITH PREJUDICE as to Ground Two.

In

addition, this Court DENIES a certificate of appealability.
There being no remaining issues in this case, the Clerk’s Office
is DIRECTED to enter final judgment and close this case 15 days

12

after this Order is filed, unless Ventrella files a timely
motion for reconsideration of this Order.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, November 14, 2023.

MICHAEL VENTRELLA VS. SHAWN WEAD, WARDEN; CV 22-00448 LEK-RT;
ORDER: DENYING IN PART AND DISMISSING IN PART “PETITION UNDER
28 U.S.C. § 2254 FOR WRIT OF HABEAUS [SIC] CORPUS BY A PERSON IN
STATE CUSTODY”; AND DENYING A CERTIFICATE OF APPEALABILITY

13