NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (S.P.P. NO. 10-1-0071; CR. NOS. 96-1-1310, 95-0-1742)
Peter D. Halloran Chief, Judge Petitioner-Appellant.
Brandon H. Ito Deputy Prosecuting Attorney City and County of Honolulu for Respondent-Appellee.
Lisa M. Itomura Deputy Attorney General for Respondent-Appellee.
Nakamura, Chief Judge, Leonard and Reifurth, JJ.
SUMMARY DISPOSITION ORDER
Petitioner-Appellant Peter D. Halloran (Halloran) appeals from the Findings of Fact, Conclusions of Law, and Order Denying Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody (Order Denying Relief), filed on April 4, 2 011, in the Circuit Court of the First Circuit (Circuit Court)
In Cr. No. 95-0-1742, Halloran pled no contest to Terroristic Threatening in the First Degree and was sentenced to five years probation. On October 1, 1997, Halloran's probation was revoked and he was resentenced to five years incarceration, to be served concurrently with any other term being served.
In Cr. No. 96-1-1310, Halloran was found guilty of Attempted Sexual Assault in the First Degree. Halloran was sentenced to an indeterminate twenty-year term of incarceration. The Circuit Court granted the State's Motion for Sentencing as a Repeat Offender and set Halloran's mandatory minimum term at six years and eight months.
Halloran appealed his conviction for Attempted Sexual Assault in the First Degree. On appeal in S.C. No. 21052, Halloran raised three points of error: (1) ineffective assistance of trial counsel; (2) abuse of discretion by the Circuit Court in denying his motion for new trial; and (3) error by the Circuit Court in granting the State's Motion for Sentencing as a Repeat Offender. After an opening brief was filed, his appellate counsel filed a motion to amend opening brief. Appellate counsel stated:
2. The appellant has informed me that there are additional issues not included in his opening brief which he considers to be relevant to his appeal. Both pertain to the question of whether appellant was denied effective assistance of counsel, in that 1) the foreman of the jury which convicted appellant was never questioned during the voir dire examination of the prospective jurors by either defense counsel or the prosecutor, so that appellant's right to be tried by an impartial jury was encumbered by his attorney's failure to take that action necessary to protect appellant's constitutional right, and 2) that defense counsel refused to file a motion to dismiss the charge under HRPP Rule 48, even though appellant believes he was entitled to a dismissal and requested his attorney to file for a dismissal.
Halloran's motion was denied. Halloran's conviction was affirmed by this court in a summary disposition order dated October 30, 1998 .
On April 14, 1999, Halloran filed a Petition for Post-Conviction Relief (First Petition), pursuant to Rule 40 of the Hawaii Rules of Penal Procedure (HRPP) and the case was docketed as S.P.P. 99-0-0008. On May 5, 2000, the Circuit Court issued an Order Denying Petition for Post-Conviction Relief on the grounds that Halloran's claims were patently frivolous. On March 22, 2004, in S.C. No. 23478, the Supreme Court of Hawai'i affirmed the denial of Halloran1s First Petition.
On September 29, 2010, Halloran filed a Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody (Second Petition), pursuant to HRPP Rule 40. Halloran alleged two grounds for relief: (1) denial of parole due to Department of Public Safety's refusal to allow him to enter sex offender treatment; and (2) ineffective assistance of counsel for failure to have the ...