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Michael C. Tierney v. Governor Neil Abercrombie

May 9, 2012


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


On April 11, 2012, the Ninth Circuit Court of Appeals vacated and remanded this Court's orders declining to address Petitioner's Federal Rule of Civil Procedure 60(b) motions for reconsideration. See ECF #57 ("First Motion"),#67 ("Second Motion"). On May 3, 2012, the appellate court's mandate issued and this case was reopened. ECF #87. Accordingly, the Court now considers Petitioner's motions for reconsideration of the September 30, 2011, Order adopting the Findings and Recommendation ("F&R") to deny the Amended Petition, denying the motion to expand the record, and denying a certificate of appealability ("COA"). See ECF #42 ("September 30 Order"). After careful consideration of Petitioner's Motions, the entire record, and the relevant legal authority, the Court DENIES Petitioner's Rule 60(b) Motions for the reasons set forth below.*fn1


Petitioner was convicted on October 27, 2009, in CR. No. 08-1-0869, in the Circuit Court of the First Circuit ("circuit court"), State of Hawai'i, for Theft and Burglary, both in the Second Degree. ECF #24, Answer at 1. Petitioner was represented by Deputy Public Defender Edward Harada at his arraignment and plea. Id. at 1-2. After entering a plea of not guilty, Harada moved to withdraw as counsel. The circuit court granted the motion, finding a conflict of interest between Petitioner and the Office of the Public Defender. Id. at 2. Petitioner later alleged that 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. During pretrial proceedings, Petitioner waived the right to counsel, and the circuit court granted his request to proceed pro se. The circuit court retained Indiola as standby counsel. Id.

After trial, the circuit court allowed Indiola to withdraw and appointed Walter Rodby, Esq., as appellate counsel. ECF #24-22, Appx. R to Answer. Petitioner timely appealed, arguing that the evidence was insufficient to convict him and that his rights to counsel and a fair and impartial judge and jury were violated. ECF #24-32, Appx. AA to Answer. On December 29, 2010, the Hawai'i Intermediate Court of Appeals ("ICA") affirmed the conviction by summary disposition order and judgment on appeal entered on January 27, 2011. ECF #24-35 at 59, Appx. to Answer. The Hawai'i Supreme Court rejected Petitioner's January 22, 2011, application for a writ of certiorari on March 7, 2011. See id. at 69. On March 16, 2011, Petitioner filed a motion under Hawai`i Rules of Civil Procedure 60(b), for relief from judgment, that the Hawai`i Supreme Court rejected on March 18, 2011. See id. at 70.

While his direct appeal was pending, Petitioner filed a petition for writ of mandamus directed at his appellate attorney, Rodby.*fn3 See Tierney v. Rodby, No. SCPW-11-0000109, 2011 WL 1090303, unpub. (Haw. Mar. 10, 2011). The Hawaii Supreme Court rejected Petitioner's request, stating that "it appears that mandamus does not lie against petitioner's court-appointed counsel[,]" and dismissed the mandamus petition for lack of jurisdiction on March 10, 2011. Id. Petitioner submitted a copy of the Hawai`i Supreme Court's March 24, 2011, order rejecting his motion for reconsideration of this decision, to support his claim that he raised and exhausted his ineffective assistance of appellate counsel ("IAC") claims before the state court. See ECF #41-4, Pet'r Reply to State's Response, Appx. 4.

On May 15, 2011, Petitioner filed his amended petition for writ of habeas corpus under 28 U.S.C. § 2254 ("Amended Petition"). ECF #14. 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.

On August 5, 2011, the magistrate judge found and recommended that the Amended Petition and COA be denied. ECF #33, F&R. 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 unsupported by any evidence and 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 these claims, and they were procedurally barred. F&R at 18-19, 23.

The magistrate judge recommended denying a COA, finding that reasonable jurists would not find 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.

On August 11, 2011, Petitioner filed objections to the F&R. ECF #35. On August 16, 2011, he moved to expand the record. ECF #37. After de novo review of the entire record and consideration of the relevant case law, this Court denied Petitioner's motion to expand the record and adopted the F&R over Petitioner's objections, including the recommendation to deny the COA. ECF #42, September 30 Order.

On October 13, 2011, Petitioner appealed. ECF #52. On October 18, 2011, Petitioner moved for reconsideration of the September 30 Order. ECF #57. The Court denied the motion for reconsideration, mistakenly believing it was divested of jurisdiction. See ECF #58. On January 25, 2012, Petitioner filed a second motion for reconsideration of the September 30, 2012 Order and other matters, ECF #67,*fn4 and the Court again declined to consider it while his appeal was pending, ECF #68.

After remand of his Rule 60(b) Motions, Petitioner moved for release on bail pending their disposition. ECF #89.


Petitioner moves for relief under Fed. R. Civ. P. 60(b). Rule 60(b) provides:

Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, ...

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