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Michael C. Tierney #A0102434 v. Warden Nolan P. Espinda

September 30, 2011

MICHAEL C. TIERNEY #A0102434, PLAINTIFF,
v.
WARDEN NOLAN P. ESPINDA, DEFENDANT.



The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge

ORDER DENYING PETITIONER'S MOTION TO ORDER EXPANSION OF THE RECORD AND DENYING PETITIONER'S OBJECTIONS TO THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO DENY (1) AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND (2) CERTIFICATE OF APPEALABILITY AND ORDER ADOPTING THE FINDINGS AND RECOMMENDATION

On August 5, 2011, the magistrate judge filed his Findings and Recommendation to Deny (1) Amended Petition for Writ of Habeas Corpus and (2) Certificate of Appealability ("F&R").

On August 11, 2011, pro se Petitioner Michael C. Tierney ("Petitioner"), filed his objections to the F&R ("Objections"). On August 16, 2011, Petitioner filed a Motion to Order Expansion of the Record ("Motion"). Respondent Nolan P. Espinda ("Respondent") filed his response to Petitioner's Objections and Motion ("Response") on September 13, 2011.*fn1 The Court finds these matters suitable for disposition without a hearing pursuant to Rules LR7.2(d) and LR74.2 of the Local Rules of Practice of the United States District Court for the District of Hawai`i ("Local Rules"). After careful consideration of the parties' submissions and the relevant legal authority, the Court HEREBY DENIES Petitioner's Motion and Objections and ADOPTS the magistrate judge's F&R, for the reasons set forth below.

BACKGROUND

The parties and the Court are familiar with the factual and legal history of this case, and the Court will only repeat the history that is relevant to the instant Objections and Motion.

Petitioner filed his amended petition for writ of habeas corpus under 28 U.S.C. § 2254 ("Amended Petition") on May 15, 2011, challenging his judgment of conviction and sentence filed in the Circuit Court of the First Circuit ("circuit court"), State of Hawai'i, on October 27, 2009. [Dkt. no. 14.] Petitioner was charged on June 5, 2008 in CR. No. 08-1-0869, with Theft and Burglary, both in the Second Degree. [Respondent's Answer, filed 6/27/11 (dkt. no. 24), at 1.] Petitioner was first represented by Deputy Public Defender Edward Harada at his guilty, Mr. Harada orally moved to withdraw as counsel. The circuit court granted the motion, finding a conflict of interest existed between Petitioner and the Office of the Public Defender. [Id. at 2.] Petitioner later alleged that Mr. Harada threatened to kill him at the arraignment and plea, although this allegation is not supported by any evidence in the record. The circuit court appointed Arthur Indiola, Esq., to represent Petitioner, but during pretrial proceedings, Petitioner waived the right to counsel, and the circuit court granted his request to proceed pro se. The circuit court retained Mr. Indiola as standby counsel. [Id.]

During the trial's jury selection, a potential replacement juror, Richard Primak, stated that he was a probation officer and indicated that Petitioner looked familiar. [Respondent's Answer, Appx. L, Tr. 1/12/2009 (dkt. no. 24-14), at 59.] The court excused Mr. Primak and instructed the jury to draw no inferences from the comment because Petitioner had never been on probation in Mr. Primak's office. On January 15, 2009, the jury unanimously convicted Petitioner of both charges. [Respondent's Answer at 4, 8.]

The circuit court appointed Walter Rodbey, Esq., as appellate counsel. [Respondent's Answer, Appx. R, Order Appointing Counsel (dkt. no. 24-22).] Petitioner timely appealed, arguing that his rights to counsel, a fair and impartial judge and fair and impartial jury were violated, and that the evidence was insufficient to convict him. [Respondent's Answer, Appx. AA, Opening Br. on Appeal (dkt. no. 24-32).] On December 29, 2010, the Hawai'i Intermediate Court of Appeals ("ICA") affirmed the conviction by summary disposition order, and the Hawai'i Supreme Court rejected Petitioner's application for a writ of certiorari on March 7, 2011. [Respondent's Answer at 12 (citing dkt. nos. 24-34 and 24-35).]

In the Amended Petition, Petitioner raised four grounds for relief: (1) Ground One -- denial of the right to counsel; (2) Ground Two -- denial of the right to an impartial judge; (3) Ground Three -- jury tampering; and (4) Ground 4 -- insufficient evidence. Respondent filed an answer on June 27, 2011, and Petitioner filed a response on July 6, 2011.

In the F&R, the magistrate judge found and recommended that the Amended Petition and certificate of appealability be denied. As to Ground One, the magistrate judge found that the claim was exhausted, but was without merit because Petitioner's claim that defense counsel threatened to kill him was not supported by any evidence and was patently frivolous, and because Petitioner waived his right to counsel. [F&R at 12-17.] As to Grounds Two, Three and Four, the magistrate judge found that Petitioner "technically" exhausted, but procedurally defaulted on these claims, and, therefore, they were procedurally barred. [Id. at 18-19, 23.] The magistrate judge denied the certificate of appealability, finding that reasonable jurists would not find that the denial of Ground One was debatable or wrong, or that the denial of Grounds Two, Three, and Four as procedurally barred was debatable. [Id. at 24-25.]

I. Petitioner's Motion

Petitioner's Motion asks that following be made part of the record in this case: his requests for certiorari denied on January 18, 2011, March 7, 2011, and March 18, 2011; his ineffective assistance of counsel post-conviction petitions; the original video-taped proceedings of his arraignment on June 16, 2008; and a copy of his supplemental pro se brief consolidated with his motion for new trial filed in the ICA on February 11, 2010. [Motion at 1.] Petitioner provides no legal authority entitling him to expand the record and does not explain in a coherent manner why these documents or evidence are necessary. Instead, he repeats arguments made in his Objections, and claims that "[t]he law is clear on these crimes that were committed against Petitioner by public defender Edward Harada, probation officer Richard, Judge Richard Perkins and D.P.A. Peter Massack, 'he gets a hearing' on these crimes committed against him by these public officials." [Id. at 2 (emphasis added).]

II. Objections and Response

A. Objections

Petitioner raises the following objections to the F&R:

1) all the Grounds were exhausted; 2) the failure to review his claims will result in a fundamental ...


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