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Elizares v. Taylor

United States District Court, D. Hawaii

October 28, 2016

CALVIN D. ELIZARES Petitioner,
v.
JOSEPH TAYLOR, Respondent.

          ORDER DENYING, IN PART, AND DISMISSING, IN PART, PETITIONER CALVIN D. ELIZARES' FEDERAL RULES OF CIVIL PROCEDURE RULE 60(b) MOTION FOR RELIEF FROM A FINAL JUDGMENT, ORDER OR PROCEEDING (ECF No. 1)

          Helen Gillmor United States District Judge

         Petitioner Calvin D. Elizares has filed a Motion that seeks review of the Court's July 12, 2007 Order Adopting the Amended Findings and Recommendation of the Magistrate Judge to Deny Petitioner's Habeas Corpus Motion filed pursuant to 28 U.S.C. § 2254 in Civ. No. 06-00465 HG-BMK.

         Petitioner's FEDERAL RULES OF CIVIL PROCEDURE RULE 60(b) MOTION FOR RELIEF FROM A FINAL JUDGMENT, ORDER OR PROCEEDING (ECF No. 64) is DENIED, IN PART, AND DISMISSED, IN PART.

         BACKGROUND/PROCEDURAL HISTORY

         HAWAII STATE COURT PROCEEDINGS

         On April 24, 2000, a jury returned a verdict in Hawaii state court, finding Petitioner Calvin D. Elizares guilty of:

(1) one count of Attempted Murder in the First Degree in violation of Haw. Rev. Stat. § 705-500;
(2) two counts of Kidnaping in violation of Haw. Rev. Stat. § 707-720(1)(d) and/or (e);
(3) two counts of Terroristic Threatening in the First Degree by Use of a Firearm in violation of Haw. Rev. Stat. § 707-716(1)(d);
(4) one count of Carrying or Use of a Firearm in the Commission of a Separate Felony in violation of Haw. Rev. Stat. § 134-6(a);
(5) one count of Terroristic Threatening in the First Degree in violation of Haw. Rev. Stat. § 707-716(1)(d);
(6) two counts of being a Felon in Possession of a Firearm in violation of Haw. Rev. Stat. § 134-7(b); and
(7) one count of Extortion in the First Degree in violation of Haw. Rev. Stat. § 707-765(1)(b).

State v. Elizares, 54 P.3d 946, (Haw. Ct. App. 2002).

         On June 28, 2000, Petitioner was sentenced to life imprisonment without parole as to the conviction for Attempted Murder and received sentences from 5 years to 20 years imprisonment for the remaining convictions. (State Court Judgment, attached as Ex. W to Resp. Answer, ECF No. 15-26, Civ. No. 06-00465 HG-BMK).

         On September 13, 2002, the Hawaii Intermediate Court of Appeals affirmed Petitioner's convictions and the Hawaii Supreme Court subsequently dismissed his application for writ of certiorari. State v. Elizares, 54 P.3d 946 (Haw. App. 2002).

         On October 19, 2004, the Hawaii Circuit Court denied Petitioner's Rule 40 Petition seeking post-conviction relief, and was affirmed on appeal. (Amended Findings and Recommendation in Civ. No. 06-00465 HG-BMK at pp. 7-10, ECF No. 26).

         SECTION 2254 PETITION FILED IN FEDERAL DISTRICT COURT

         Following the proceedings in Hawaii State Courts, on August 28, 2006, Petitioner filed a Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2254 with this Court in Civ. No. 06-00465 HG-BMK. (ECF No. 1).

         On July 12, 2007, the District Court issued an Order Adopting the Magistrate Judge's Amended Findings and Recommendation, as Supplemented and Modified, to Deny the Petition for Writ of Habeas Corpus. (ECF No. 33).

         PROCEEDINGS BEFORE THE FEDERAL APPEALS COURTS

         On March 24, 2009, the Ninth Circuit Court of Appeals issued an Order affirming the District Court's denial of his Section 2254 Habeas Petition. (ECF No. 41).

         On July 17, 2009, the Ninth Circuit Court of Appeals issued an Order denying a ...


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