United States District Court, D. Hawaii
JAMES K. LIBERO, #A4009529, Petitioner,
STATE OF HAWAII, Respondent.
ORDER DISMISSING PETITION AS TIME-BARRED AND DENYING CERTIFICATE OF APPEALABILITY
J. Michael Seabright Chief United States District Judge
Before the court is pro se petitioner James K. Libero’s amended petition for writ of habeas corpus (“Petition”). Doc. No. 8. Libero challenges his conviction and sentence in State v. Libero, Cr. No. 2PC98-0-000697, for Attempted Murder in the Second Degree (Count One) and Assault in the First Degree (Count Two) in the Circuit Court of the Second Circuit, State of Hawaii (“circuit court”). See State v. Libero, 103 Haw. 490, 83 P.3d 753 (Haw. Ct. App. 2003), abrogated in part by State v. Frisbee, 114 Haw. 76, 83, 156 P.3d 1182, 1189 (2007); see also Cr. No. 2PC98-0-000697, http://hoohiki1.courts.state.hi.us/jud/Hoohiki/main.htm. (“Ho`ohiki”).
Respondent asserts that Libero’s claims are time-barred pursuant to 28 U.S.C. § 2244(d)(1) and moves for dismissal of the Petition. Prelim. Resp., Doc. No. 11. Libero argues that he is entitled to equitable tolling of the statute of limitation. See Replies, Doc. Nos. 11, 13. After careful consideration of the entire record, the court DISMISSES the Petition with prejudice as untimely. Any request for a certificate of appealability (“COA”) is DENIED.
On November 2, 2000, Libero appealed his convictions in Cr. No. 2PC98-0-000697, represented by Matthew S. Kohm, Esq. See Resp’t App. A, Libero, 103 Haw. 490, 83 P.3d 753; see also Libero v. State, No. CAAP-13-0000415 (Haw. Ct. App. May 22, 2015). While his direct appeal was pending, Libero filed his first pro se state habeas petition pursuant to Rule 40 of the Hawaii Rules of Penal Procedure (“HRPP”), S.P.P. No. 01-1-0013(2), which was dismissed as premature on November 26, 2001. See Resp’t App. W, Doc. No. 12-24, PageID #421 (Findings of Fact, Conclusions of Law, S.P.P. No. 13-1-0002(2)).
On December 31, 2003, the Hawaii Intermediate Court of Appeals (“ICA”) affirmed Libero’s convictions in Counts I and II (Attempted Murder in the Second Degree and Assault in the First Degree), but reversed his conviction in Count III (Attempted Sexual Assault in the First Degree). Resp’t App. C (Am. J.); see also Libero, 103 Haw. at 507, 83 P.3d at 770. The Hawaii Supreme Court rejected Libero’s petition for certiorari on February 9, 2004. Resp’t App. B.
On March 29, 2004, Libero filed his second pro se Rule 40 petition. Resp’t App. D (S.P.P. 04-1-0008(2)). The circuit court denied the second petition on November 8, 2004, and Libero did not appeal. Resp’t App. E; Ho`ohiki, 2PR04-1-000008, Docket No. 17.
On November 26, 2004, Libero filed his third pro se Rule 40 petition, S.P.P. 04-1-0029(2). Resp’t App. F. The circuit court denied this petition on March 22, 2005, and Libero did not appeal. Resp’t App. G; Ho`ohiki, 2PR04-1-000029, Docket No. 7.
On April 4, 2005, Libero filed his fourth pro se Rule 40 petition, S.P.P. 05-1-0007(2). Resp’t App. H. The circuit court denied this petition on June 14, 2005, and Libero did not appeal. Resp’t App. I; Ho`ohiki, 2PR05-1-000007, Docket No. 8.
On July 19, 2005, Libero filed his fifth pro se Rule 40 petition, S.P.P. 05-1-0017(2). Resp’t App. J. Libero filed three supplements to this petition. Resp’t Apps. K, L, M. The circuit court denied this petition on October 19, 2005, and Libero did not appeal. Resp’t App. N; see also Ho`ohiki, 2PR05-1-000017, Docket No. 8.
On or about October 19, 2005, the Hawaii Innocence Project (“HIP”) began an investigation regarding DNA evidence found on the kiawe branch used in the assault in Libero’s case. See Doc. No. 11-4 (letter from HIP to Libero); see also Reply, Doc. No. 11, PageID #127.
By later dated November 8, 2007, Kohm informed Libero that the Hawaii Supreme Court’s decision in Frisbee likely entitled Libero to relief. Doc. No. 11-1, Pet’r Att. (11/8/2007 letter). In Frisbee, the Hawaii Supreme Court held that the circuit court’s failure to instruct the jury with respect to merger and unanimity of charges under Hawaii Revised Statutes § 701-109(1)(e), was plain error. 114 Haw. at 83-84, 156 P.3d at 1189-90. Kohm had argued this issue in Libero’s direct appeal and offered to assist Libero in filing another Rule 40 petition, raising this single issue, if Libero notified him that this was his desire. Because Libero had raised ineffective assistance of counsel claims against Kohm, however, Kohm warned that he may be unable to represent Libero. He believed that the court might appoint Libero a public defender. Kohm strenuously advised Libero to pursue this issue with legal representation, regardless of whether Libero sought Kohm’s assistance. Although the record does not reflect whether Libero then contacted Kohm, Kohm did not file a Rule 40 Petition on Libero’s behalf.
On August 11, 2009, HIP concluded its investigation and informed Libero it could not represent him. Doc. No. 11-4, PageID #137. It forwarded Libero’s files to Kohm and never filed any post-conviction petition on Libero’s behalf.
On August 25, 2009, Kohm wrote Libero to clarify that he did not, and had no legal obligation to, represent him. Pet’r Att. 3, Doc. No. 11-3. Kohm explained again that he would file a single-issue Rule 40 Petition for Libero (raising only the merger issue), only if Libero notified him that he approved, waived any conflicts raised by Libero’s ineffective assistance of counsel claims against Kohm, and if the court appointed him. Kohm said he preferred that Libero seek another attorney, however, and cautioned that it was very difficult to have counsel appointed in Rule 40 proceedings. Kohm ended with, “If I do not hear from you, I will assume you are handling the matter on your own or with other counsel. I strongly encourage you to have legal representation as you could/should get relief and it needs to be set up correctly.” Id., PageID #136.
On December 3, 2009, Libero, proceeding pro se, filed his sixth Rule 40 petition, S.P.P. 09-1-0030(2). Resp’t App. O, Doc. No. 12-16. Libero argued that the circuit court erred by failing to instruct the jury that his attempted murder and assault charges had merged, and asserted that he should be resentenced on the “lesser included offense” of assault. Id., PageID #280. Libero later filed several supplements to the sixth Rule 40 petition, raising the lack of his DNA evidence on the kiawe branch used during the assault, entrapment, and other issues that had been previously raised and decided in earlier petitions or direct review. See Resp’t Apps. P, Q, R, Doc. Nos. 12-17 - 12-19. The circuit court denied this petition on April 24, 2012, and again, Libero did not appeal. Resp’t App. S; see also Ho`ohiki, 2PR09-1-000030, Docket No. 24.
On September 14, 2012, Libero filed his seventh Rule 40 petition, S.P.P. 12-1-0011(2). Resp’t App. T. The circuit court denied this petition on January 16, 2013. Resp’t App. U, Doc. No. 12-22. Although Libero later submitted additional memoranda in support of his petition, the circuit court struck these documents and Libero did not appeal. See Ho`ohiki, 2PR12-1-000011, Docket Nos. 12-14.
On February 20, 2013, Libero filed his eighth Rule 40 petition, S.P.P. 13-1-0002(2). Resp’t App. V, Doc. No. 12-23. Libero asserted four grounds for relief: (1) the lack of DNA evidence on the assault weapon proved his innocence; (2) the circuit court erred by failing to instruct the jury that the Attempted Murder and Assault charges merged; (3) there was no probable cause to arrest based on statements he allegedly made before he was given a Miranda warning; and (4) irrelevant and prejudicial witness testimony. Resp’t App. V, W, Doc. Nos. 12-23, 12-24. The circuit court ...