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Peter R. Tia, #A1013142 v. Nolan Espinda

October 31, 2012

PETER R. TIA, #A1013142,
PETITIONER,
v.
NOLAN ESPINDA, RESPONDENT.



The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge

ORDER DISMISSING PETITION WITH PREJUDICE AND DENYING CERTIFICATE OF APPEALABILITY

ORDER DISMISSING PETITION WITH PREJUDICE AND DENYING CERTIFICATE OF APPEALABILITY

Before the court is Peter R. Tia's petition for writ of habeas corpus under 28 U.S.C. § 2254 ("Petition"). Tia challenges his sentence in CR No. 07-01-1443. See Pet., ECF #1. Respondent has filed a Preliminary Answer and Supplemental Brief. ECF #22, #33. Tia has filed numerous documents in support of his Petition and in response to the OSC, Preliminary Answer, and Supplemental Brief.*fn1

Because Tia's claims are unexhausted and procedurally barred, the Petition is DISMISSED with prejudice pursuant to 28 U.S.C. § 2254(b). A certificate of appealability is DENIED.

I. BACKGROUND

On May 22, 2008, a jury found Tia guilty of Promoting a Dangerous Drug in the Second Degree in violation of Hawaii Revised Statutes ("Haw. Rev. Stat.") § 712-1242 (Count I) and Promoting a Dangerous Drug in the Third Degree in violation of Haw. Rev. Stat. § 712-1243 (Count II). See App. B, ECF #22-3 PageID #16 (State v. Tia, No. 29752 (Haw. App. Jul. 29, 2010) (summary disposition order)). He was sentenced to ten years of imprisonment for Count I and five years of imprisonment for Count II, with a mandatory minimum sentence of three years and four months as a repeat offender. Id. These sentences were to run concurrently with each other and with Tia's conviction in CR No. 08-1-0985. On January 29, 2009, the Circuit Court of the First Circuit ("circuit court") entered an Amended Judgment of Conviction and Sentence ("Amended Judgment"). Id.

Tia's court-appointed appellate counsel, Venetia Carpenter-Asui, Esq., raised one issue on appeal: whether Tia had been sufficiently identified as the person previously convicted in CR. No. 96-0703, such that he could be sentenced as a repeat offender. ECF #22-5 PageID #178-185. On July 29, 2010, the Hawaii Intermediate Court of Appeals ("ICA") affirmed Tia's sentence as a repeat offender, finding that Tia did not make a good faith challenge to the presentence report, as required under Hawaii law. ECF #22-1, PageID #146. Tia did not seek certiorari to the Hawaii Supreme Court.*fn2 Judgment on appeal was entered on August 19, 2010.*fn3 ECF #22-7, PageID #225.

On or about December 28, 2010, Tia signed a pleading he titled "Defendant's Motion For Release On His Own Recognizance Or Alternative," and sent it to the state circuit court. Resp.'s App. C., ECF #33-3 PageID #330-31. It is unclear when Tia gave this document to prison officials for mailing, but it was received in the state circuit court on January 20, 2011. On or about March 16, 2011, the state court designated this document as a Nonconforming Rule 40 Petition pursuant to Hawaii Rules of Penal Procedure ("Haw. R. Penal P.") Rule 40(c)(2). Resp.'s App. B., ECF #33-2 PageID #328. In this pleading, Tia sought release on his own recognizance or to a drug court program, alleging that his minimum term had expired. Tia vaguely argued that his "court appointed counsels"*fn4 had not "properly" informed him of his rights, that he had served his minimum term, and that he had a hearing scheduled before the Hawaii Paroling Authority in January 2011. Resp.'s App. C, ECF #33-3 PageID #330-331.

The circuit court instructed Tia to submit an amended petition on the court's form, and to pay the filing fee or submit an in forma pauperis application, on or before April 17, 2011, or risk dismissal of the petition for failing to comply with state rules. Id. PageID #329; see also Haw. R. Penal P. 40(c)(2)(iiii). On April 4, 2011, Tia responded that the state circuit judge was "in cahoots" with the Ninth Circuit Court of Appeals and United States District Judge Helen Gillmor to deny his rights. Resp.'s App. D, ECF #33-4, PageID 336.

On April 5, 2011, the state circuit court sent Tia a second letter, again explaining the deficiencies in his Nonconforming Rule 40 Petition and notifying him that he had to comply with Rule 40(c) on or before April 17, 2011. Id., ECF #22-5, PageID #338-39. After waiting more than a month and receiving nothing further from Tia, the state circuit court dismissed the Nonconforming Rule 40 Petition based on Tia's failure to comply with state rules and conform the pleading "with the requirements of HRPP Rule 40, HRPP Rule 40(c), and HRPP 's appendix, including Form A and Form B." Resp.'s App. F, ECF #33-6 PageID #349 (dated May 10, 2011).

Tia signed the present federal habeas petition on May 13, 2012, and the court received and filed it on May 16, 2012. Tia raises four ineffective assistance of counsel claims against: (1) appellate counsel Carpenter-Asui for failing (a) to move for a reduction of sentence after the Hawaii Supreme Court vacated his conviction in CR. No. 08-1-0985, for which he was serving a concurrent sentence (Ground One), and (b) to raise other undisclosed issues on appeal (Ground Four); (2) trial counsel Fujioka, for failing to secure for Tia participation in a drug rehabilitation program in lieu of incarceration (Ground Two); and (3) sentencing counsel Park, for failing to object to the State's motion to sentence Tia as a repeat offender (Ground Three). ECF #1, Pet. at 3, 5, 7, & 9.

II. EXHAUSTION AND PROCEDURAL DEFAULT

A. Exhaustion

A prisoner seeking federal habeas corpus relief must exhaust his claims in the state courts prior to filing a petition for a writ of habeas corpus in federal court. 28 U.S.C. §§ 2254(b) and (c); Baldwin v. Reese, 541 U.S. 27, 29 (2004); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 731 (1991); Peterson v. Lampert, 319 F.3d 1153, 1155 (9th Cir. 2003) (en banc). "The exhaustion-of-state-remedies doctrine . . . reflects a policy of federal-state comity, an accommodation of our federal system designed to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks, citations and footnote omitted); O'Sullivan, 528 U.S. at 844-45. "The exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. 509, 518 (1982).

To properly exhaust habeas claims, a petitioner must "present the state courts with the same claim he urges upon the federal court." Picard, 404 U .S. at 276. To fully exhaust, a petitioner must alert the state court "to the fact that the prisoner [is] asserting claims under the United States Constitution" and must give the state court an opportunity to correct alleged violations of the petitioner's federal ...


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