The opinion of the court was delivered by: J. Michael Seabright United States District Judge
ORDER DISMISSING PETITION AS TIME-BARRED
Before the court is pro se Petitioner Henry Kapononuiahopili Lii's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction and sentence in the Circuit Court of the First Circuit, State of Hawaii ("circuit court"), CR No. 88-0826. On December 5, 2012, the court dismissed the Petition with leave to amend for Petitioner's failure to name a proper Respondent. The court also ordered Petitioner to show cause on or before January 2, 2013, why the Petition should not be dismissed as time-barred. Petitioner has filed an Amended Petition and responded to the Order to Show Cause. ECF Nos. 7-8. For the following reasons, the Petition is DISMISSED with prejudice as time-barred. Any request for certificate of appealability is DENIED.
I. THE WARDEN IS SUBSTITUTED AS RESPONDENT Petitioner argues that his Petition is "a Hawaii rule 40, now filing to Federal court, on 28 USC 2254," and that, therefore, the State of Hawaii is the correct Respondent. A petitioner seeking a writ of habeas corpus under § 2254, as Petitioner concedes is his intent, must name the state officer having custody of him or her as the respondent to the petition. See Rule 2(a) of the Rules Governing § 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. Cal. Sup. Ct., 21 F.3d 359, 360 (9th Cir. 1994). Petitioner is confined at the United States Penitentiary in Atwater, California, whose current warden is Paul Copenhaver. The court sua sponte substitutes Warden Copenhaver as Respondent to this suit.
On or about September 13, 1988, Petitioner pled guilty to Promoting a Dangerous Drug in the Second Degree in CR No. 88-0826. See Pet., ECF #1, Mem. in Support, ECF #3; see also http://hoohiki1.courts.state.hi.us/jud/Hoohiki/. Petitioner was granted a deferred acceptance of guilty plea ("DAG plea") and Judgment entered on or about February 16, 1989. Petitioner did not directly appeal his conviction. See id. Approximately five years later, on or about February 23, 1994, Petitioner's DAG plea was revoked in CR No. 88-0826, and he was resentenced to ten years imprisonment with credit for time served, to run concurrently with his sentences in CR Nos. 88-2308, 92-3025, and 93-3058. Petitioner did not appeal.
Approximately sixteen years later, on February 9, 2010, Petitioner filed a "Motion to Supplement Before Judgment," in the state circuit court, which was designated as a non-conforming petition for post-conviction relief pursuant to Hawaii Rules of Penal Procedure ("HRPP") Rule 40, 1PR10-1-00010. On December 23, 2010, the circuit court denied the Rule 40 petition without a hearing. On January 26, 2012, the Hawaii Intermediate Court of Appeals ("ICA") affirmed. See Lii v. State, 2012 WL 255670 (Haw. App. Jan. 26, 2012). On June 12, 2012, the Hawaii Supreme Court rejected Petitioner's application for writ of certiorari.
Id., 2012 WL 2161154 (Haw. Jun. 12, 2012).
Petitioner is currently serving a term of life imprisonment at the United States Penitentiary ("USP") in Atwater, California, for his February 12, 2007, judgment of conviction in United States v. Lii, No. 1:06-cr-00143 JMS.
Because this Petition is obviously untimely on its face, on December 5, 2012, the court sua sponte raised the statute of limitations issue. See Day v. McDonough, 547 U.S. 198, 210 (2006) (holding that district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition). Before dismissing the Petition as time-barred, however, this court provided Petitioner with notice and an opportunity to respond. See Herbst v. Cook, 260 F.3d 1039, 1043 (9th Cir. 2001). Petitioner has responded.
Petitioner's claims are governed by the statute of limitations set forth in 28 U.S.C. § 2244(d)(1), which provides: a one year period of limitation on applications for writ of habeas corpus by persons in custody pursuant to state court judgments. The limitation period runs from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing such by State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...