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Crandall Penaflor, #A0072574 v. Todd Thomas

July 6, 2012

CRANDALL PENAFLOR, #A0072574,
PETITIONER,
v.
TODD THOMAS, RESPONDENT.



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

ORDER DENYING OBJECTIONS AND CERTIFICATE OF APPEALABILITY

Before the court is pro se Petitioner Crandall Penaflor's "Objections" to the May 29, 2012, Order denying his petition for writ of habeas corpus under 28 U.S.C. § 2254. See Ord., ECF #16; Objections, ECF #17. Respondent has filed a memorandum in opposition to the Objections, ECF #19, and Petitioner has filed a reply, ECF #20. The court construes Petitioner's Objection as a motion for reconsideration pursuant to either Fed. R. Civ. P. 59 or 60. Petitioner's Motion for Reconsideration is DENIED and a certificate of appealability is again, DENIED.

I. PROCEDURAL BACKGROUND*fn1

On June 25, 1991, Petitioner was convicted of first degree burglary (Count I), first degree terroristic threatening (Counts II and III), kidnapping (Count IV), and two counts of first degree sexual assault (Count VI and VII). Petitioner was sentenced to consecutive terms of imprisonment totaling seventy years. Petitioner appealed the imposition of consecutive sentences. The Hawaii Supreme Court, however, affirmed the conviction and sentence on August 26, 1992.

On January 22, 1998, Petitioner filed his first post-conviction petition pursuant to Rule 40 of the Hawaii Rules of Penal Procedure ("HRPP") ("First Rule 40 Petition"). Petitioner raised three new grounds for relief: (1) ineffective assistance of counsel; (2) his conviction was obtained through perjured witness testimony; and (3) biased jury. On May 4, 1998, the trial court denied Petitioner's First Rule 40 Petition and Petitioner did not appeal.

On February 28, 2000, Petitioner moved for correction of his sentence pursuant to HRPP 35 ("Rule 35 Motion"). The trial court denied the motion and the Hawai`i Intermediate Court of Appeals ("ICA") affirmed on October 21, 2002. The ICA concluded, however, that one of Petitioner's terroristic threatening charges merged with the kidnapping charge involving the same victim (Counts II and IV), and reversed the conviction for terroristic threatening in Count II. The Hawai`i Supreme Court denied certiorari.

On September 11, 2006, Petitioner filed a Second Rule 40 Petition, raising numerous new ineffective assistance of trial and appellate counsel claims, as well as claims of prosecutorial misconduct and the denial of a fair and impartial trial. The trial court denied the Second Rule 40 Petition, finding that Penaflor's claims were procedurally barred under HRPP 40(a)(3). On June 24, 2008, the ICA affirmed, and the Hawai`i Supreme Court later rejected certiorari.

On August 17, 2009, Petitioner filed his first federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court. See Penaflor v. Thomas, 1:09-cv-00378 DAE. The petition was dismissed without prejudice as premature, because Petitioner complained that he had not been resentenced pursuant to the reversal of his conviction in Count II for terroristic threatening and no amended judgment had been entered reflecting the reversal of Count II.

On December 21, 2009, the trial court vacated Penaflor's five-year sentence for terroristic threatening in Count II, retained the same consecutive sentences for Penaflor's other convictions, and entered an Amended Judgment. On February 25, 2011, the ICA affirmed the circuit court's decision. Petitioner sought certiorari with the Hawai`i Supreme Court, raising numerous issues and alleging for the first time that his consecutive sentences violated Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny. On June 2, 2011, the Hawai`i Supreme Court rejected Penaflor's application for certiorari.

On January 20, 2012, Petitioner filed the instant Petition, raising two grounds for relief: (1) the trial court violated the holding in Apprendi, and its progeny, as well as state law, when it resentenced him to consecutive sentences (Ground One); and (2) ineffective assistance of trial and appellate counsel (Ground Two). On May 17, 2012, this court denied the Petition, finding that its claims were procedurally barred and that the Apprendi claim was without merit. Ord., ECF #16.

Petitioner seeks reconsideration, apparently alleging that extraordinary circumstances, including lack of access to a law library when he was incarcerated in Minnesota, Mississippi, and Texas, prevented him from properly raising his claims in his First Rule 40 Petition. Mot., ECF #17. Petitioner also realleges that he is actually innocent.

II. LEGAL STANDARDS

A party may seek reconsideration under Federal Rule of Civil Procedure 59(e) or 60(b). Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir. 1988). Under Rule 59(e), reconsideration is only appropriate if, within 28 days of the entry of judgment, (1) the court is presented with newly discovered evidence; (2) the court committed clear error or made an initial decision that was manifestly unjust; or (3) there is an intervening change in controlling law. Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001).

As applicable to Petitioner's Motion, Rule 60(b) adds several other grounds for seeking reconsideration or relief from judgment, including (1) mistake, inadvertence, surprise, or excusable neglect; (2) fraud, misrepresentation, or misconduct by an opposing party; and (3) any other reason that justifies relief. See Brown v. Warden, 2011 WL 2559428 at *2 (E.D. Cal. June 27, 2011). Under both standards, "[r]econsideration is not a vehicle by which an unsuccessful party is permitted to rehash arguments previously presented or to raise arguments ...


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