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Gabriel S. Apilando v. State of Hawaii

October 1, 2012


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


On July 30, 2011, pro se Petitioner Gabriel S. Apilando, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Petition"). Petitioner challenges his convictions and sentences in the Circuit Court of the First Circuit, State of Hawaii ("circuit court"), Cr. Nos. 01-0-0098 and 01-1-0424. Petitioner has now named a proper Respondent, ECF #8, and responded to the court's Order to Show Cause why the Petition should not be dismissed as time-barred, ECF #9.

For the following reasons, the Petition is DISMISSED with prejudice as time-barred. Petitioner's request for transcripts is DENIED. Any request for certificate of service is DENIED.


Petitioner pled guilty and was sentenced to a twenty year term of imprisonment for Robbery in the First Degree in Cr. No. 01-0-0098, and a ten year term for Accomplice to Attempted Escape in 01-1-0424 on or about September 30, 2004. See Pet. App. 2, Apilando v. State, No 29930 (Haw. App. 2009), ECF #1-2;*fn1 see also Judgment entered that same day.

On October 8, 2004, the Hawaii Paroling Authority ("HPA") set Petitioner's minimum term for both convictions at one year and six months, based in large part on an oral recommendation for a one-year minimum term that the Deputy Prosecutor made at the change of plea hearing. Petitioner did not directly appeal his convictions in either criminal case. See id. Petitioner completed his minimum term and was released on parole in April 2005.

Approximately two and a half years later, on December 5, 2007, Petitioner's parole was revoked due to violations of the terms and conditions of his parole. On December 12, 2007, Petitioner wrote the circuit court to appeal his robbery conviction.*fn2 The circuit court construed the document as a non-conforming petition for post-conviction relief pursuant to Hawaii Rules of Penal Procedure ("HRPP") Rule 40(c)(2), S.P.P 08-1-0006.

On June 8, 2009, the circuit court denied the Rule 40 petition on all grounds except Ground Two, which alleged that Petitioner's plea agreement was illegally induced. See Findings of Fact, Conclusions of Law and Order, App. 5, ECF #1-5. In Ground Two, Petitioner argued that the Deputy Prosecutor had promised to write a letter to the HPA recommending a one-year minimum term, and did not. Moreover, another Deputy Prosecutor sent a letter to the HPA, recommending a ten-year minimum term. The circuit court appointed Deputy Attorney General Jeffrey A. Hawk to represent Petitioner and held a hearing on the issue. The circuit court thereafter determined that the Deputy Prosecutor had, in fact, failed to provide this letter to the HPA and that the plea agreement was therefore unlawfully induced. The circuit court held that Petitioner was entitled to withdraw his guilty plea in both cases. The State appealed.

On October 28, 2010, the ICA reversed the circuit court, finding that, although the Deputy Prosecutor failed to send a letter to the HPA as promised, "[t]here is ample evidence in the record that the [HPA] considered Deputy Prosecutor Wada's recommendation." See App. 2, Apilando v. State, No. 29930, ECF #1-2 at PageID #24. The ICA noted that the HPA had explicitly acknowledged the Deputy Prosecutor's one-year minimum term recommendation made at the change of plea hearing and set Petitioner's minimum term below the state's guideline minimum terms for his convictions. The ICA stated that "[Petitioner] received the benefit of the plea agreement [while he was on parole] and then waited over four years before bringing the technical violation [of the plea agreement] to the court's attention." Id. The ICA vacated the circuit court's order and reinstated Petitioner's convictions and sentences. The Hawaii Supreme Court denied Petitioner's application for certiorari on April 5, 2011. See Apilando v. State, SCWC-29930, 2011 WL 1335728 (Haw. 2011).

Petitioner filed this Petition on July 26, 2012, when he gave it to prison authorities for mailing to this court.*fn3 See ECF #1-7, Att. 7 (mailing documentation).

The Petition raises four grounds for relief, although these grounds are not clear. In Ground One, Petitioner claims ineffective assistance of trial counsel, Glenn Choy, Esq., for Choy's alleged failure to appeal Petitioner's conviction based on "the breach of the plead agreement." Pet., ECF #1 at 6. Petitioner states that he asked Choy to file an appeal "while on parole." Id.

In Ground Two, Petitioner complains that Deputy Prosecutor Lori Wada failed to write a letter recommending a one-year minimum term to the HPA, and instead, Deputy Prosecutor Russell Uehara wrote a letter to the HPA recommending a ten-year minimum term.

In Ground Three, Petitioner complains again that his attorney, Glenn Choy, failed to file a direct appeal and told Petitioner that appeal was not possible under the terms of his plea agreement. Petitioner also says that his post-conviction attorney, Jeffrey Hawk, similarly advised him that he had no basis to appeal after he pleaded guilty. See Pet., ECF #1 at 10 ("advised by Attrny Jeffrey Hawk (Rule 40 counsel) that I did not need to" raise this issue on direct appeal). Petitioner further claims that Choy did not return his telephone calls for a year.

Finally, in Ground Four, Petitioner claims that "the altered confession statement recorded by Det. Tamashiro was fabricated. It's only (1) one of several statements take[n] while interrogated." Pet., ECF #1 at 11. Petitioner claims that Hawk advised him not to raise this issue in his post-conviction petition, which is why Petitioner failed to exhaust this claim.

II. 28 U.S.C. § 2244(d)

The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") provides a one year period of limitation on applications for writ of habeas corpus by persons in custody pursuant to state court ...

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