United States District Court, D. Hawaii
RICHARD M. RUH, #A0209217, Petitioner,
STATE OF HAWAII, et al., Respondents.
ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF APPEALABILITY
LESLIE E. KOBAYASHI, UNITED STATES DISTRICT JUDGE
Before the court is pro se petitioner Richard M. Ruh’s petition for writ of habeas corpus (“Petition”). Pet., Doc. No. 1. Petitioner challenges the Hawaii Paroling Authority’s (“HPA”) allegedly illegal calculation of his maximum consecutive terms after it revoked his parole in 2008, in State v. Ruh, Cr. No. 93-0173(2), and State v. Ruh, Cr. No. 94(0092(1).
The court ordered Respondent and Petitioner to address the procedural issues present in the Petition, particularly its apparent time-bar. Doc. No. 7. Respondent argues the Petition must be dismissed as time-barred pursuant to 28 U.S.C. § 2244(d), and that Ground Six is unexhausted. Prelim. Answer, Doc. No. 8. Petitioner asserts that he is entitled to equitable tolling of the statute and that the Petition is not procedurally barred. See Reply, Doc. Nos. 9-11.
Because Petitioner fails to state a cognizable federal claim for relief under 28 U.S.C. § 2254, the Petition is DISMISSED with prejudice. The court need not address whether equitable tolling applies to render Petitioner’s claims timely. Any pending motions or request for a certificate of appealability are DENIED.
On February 17, 1994, the Circuit Court of the Second Circuit, State of Hawaii (“circuit court”), sentenced Petitioner to seven concurrent twenty-year terms of imprisonment on his conviction for seven Class A felonies for sexual assault in the first degree in Cr. No. 93-0173(2). See App. A, Doc. No. 8-1; see also Hawaii Revised Statutes (“HRS”) § 707-730(2) (defining sexual assault in the first degree as a Class A felony), and § 706-659.
On May 25, 1995, after a minimum term hearing, the Hawaii Paroling Authority (“HPA”) set Petitioner’s minimum term at eight years for each term of imprisonment, pursuant to HRS § 706-669(1),  with a minimum term expiration date of April 11, 2001. App. B, Doc. No. 8-2.
On May 3, 1995, the circuit court sentenced Petitioner to a five year term for escape in the second degree in Cr. No. 94-0092(1), to run consecutively to the seven concurrent twenty-year terms in Cr. No. 93-0173(2). App. C, Doc. No. 8-3. Petitioner’s combined maximum term for both criminal proceedings is therefore twenty-five years.
On March 28, 1996, the HPA set Petitioner’s minimum term in Cr. No. 94-0092(1) at three years, to begin when his minimum term expired in Cr. No. 93-0173(2), and expire three years later, on April 10, 2004. This date represents the aggregated minimum term for both criminal proceedings, and the earliest date that Petitioner was eligible for release on parole. App. D, Doc. No. 8-4.
On June 19, 2007, three years after his aggregated minimum terms expired, the HPA granted Petitioner parole, to commence on June 26, 2007. App. E, Doc. No. 1-5 (“HPA Order”). The HPA Order explicitly informed Petitioner that his full “Term of Parole” in Cr. No. 93-0173(2) would expire on December 11, 2013, and his full Term of Parole in Cr. No. 94-0092(1) would expire on June 26, 2018. Id. The HPA notified Petitioner that, if he violated the terms and conditions of parole, he “may be required to serve the remainder of his/her term.” Id., PageID #185.
On April 11, 2008, Petitioner pled guilty to three separate, serious violations of the terms and conditions of his parole at a revocation hearing. On April 17, 2008, the HPA revoked Petitioner’s parole, and recommitted him for the balance of his maximum terms in Cr. Nos. 93-0173(2) and 94-0092(1), as imposed by the circuit court. App. F, Doc. No. 8-6.
On January 13, 2012, Petitioner, proceeding pro se, signed a petition for post-conviction relief pursuant to Rule 40 of the Hawaii Rules of Penal Procedure (“HRPP”). App. G, Doc. No. 8-7 (S.P.P. No. 12-1-0003(2)) (“Rule 40 Petition”). Petitioner did not challenge the revocation of his parole or HPA decision to commit him for the remainder of his maximum terms. Rather, he alleged that his continued imprisonment until his original maximum terms was incorrect because his minimum terms were “fully served and expired.” Id., PageID #198. Petitioner theorized that, because his minimum term in Cr. No. 93-0173(2) expired on April 11, 2001, and his consecutive minimum term in Cr. No. 94-0092(1) began on that date, meaning his twenty-year terms in Cr. No. 93-0173(2) were effectively discharged on April 11, 2001. Under this creative theory, Petitioner alleges his five-year sentence in Cr. No. 94-0092(1) was therefore completed on or about April 12, 2006. Id.
The State disputed this interpretation of his terms of sentence, explaining that the trial court sentenced him to seven concurrent twenty-year terms in Cr. No. 93-0173(2), and a five-year consecutive terms in Cr. No. 94-0092(1). App. H, Doc. No. 8-8. Under Hawaii law, minimum terms, aggregated or not, represent the earliest possible date that an inmate can be released, not the expiration of his maximum terms of imprisonment. Id. (citing HRS §§ 353-62, 353-65, 353- 66, 706-668, 706-670, and Hawaii Administrative Rule § 23-700-51) (discussing a trial court’s authority to impose ...