United States District Court, D. Hawaii
STEVEN L. FISHER, #A0002539, Petitioner,
J. TAYLOR, Respondent.
ORDER DISMISSING PETITION AS TIME-BARRED AND DENYING
CERTIFICATE OF APPEALABILITY
Derrick K. Watson United States District Judge.
the court is pro se petitioner Steven L. Fisher's
petition for writ of habeas corpus brought pursuant to 28
U.S.C. § 2254. Fisher challenges his judgment of
conviction and sentence imposed by the Circuit Court of the
Third Circuit, State of Hawaii (“circuit court”)
on September 2, 1981,  in State v. Fisher,
argues that Fisher's claims are time-barred pursuant to
28 U.S.C. § 2244(d). Resp't Prelim. Resp., ECF No.
23. Fisher asserts that he is entitled to tolling of the
statute of limitation because he has been incarcerated on the
Mainland since December 1995, in prisons with allegedly
inadequate law libraries, and has had no access to the
internet. 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.
was convicted in the circuit court of Murder, in violation of
Hawaii Revised Statutes §§ 707-701(1) &
706-606(a) (“HRS”). The circuit court sentenced
him to life imprisonment without parole because Fisher
committed the offense while incarcerated at the Kulani
Correctional Facility. See HRS §§ 707-701
and 706-606(a)(iv). On September 13, 1982, the Hawaii Supreme
Court affirmed Fisher's conviction and sentence.
about April 21, 1983, Fisher, proceeding pro se, moved for
appointment of counsel to assist him in post-conviction
proceedings. Although two attorneys were appointed to assist
Fisher, apparently neither filed a petition for
post-conviction relief. See ECF No. 22-1, PageID
December 12, 1991, Fisher filed a pro se petition for
post-conviction relief, which was dismissed on December 17,
1991. ECF No. 25, PageID #124. Fisher did not appeal.
February 11, 1992, Fisher filed a pro se petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 in this
court. See Fisher v. Smythe, Civ. No. 92-00081 ACK.
On May 28, 1992, the district court dismissed this petition
as unexhausted. Id., ECF No. 8. Fisher did not
December 1995, Fisher was transferred to a private prison on
the Mainland by contract between the State of Hawaii
Department of Public Safety and the Corrections Corporation
of America. Pet'r Resp., ECF 22, Page ID #95. Fisher has
remained confined at various prisons on the Mainland since
16, 2001, Fisher filed a Motion for Correction of Illegal
Sentence, pursuant to Rule 35 of the Hawaii Rules of Penal
Procedure (“HRPP”) in the circuit court. See
Fisher v. State, CAAP-14-0000787 (Haw. App. June 30,
2015), ECF No. 25, PageID #149-53; see also State v.
Fisher, No. 24915, 2002 WL 31873648 (Haw. 2002), ECF No.
25, PageID #145-47. Fisher alleged that he should have been
sentenced to only twenty years imprisonment under HRS §
706-659, rather than his term of life without parole. The
circuit court denied the motion and the Hawaii Supreme Court
dismissed Fisher's appeal on December 23, 2002, as
years later, on December 28, 2011, Fisher, proceeding pro se,
filed a post-conviction petition pursuant to HRPP Rule 40.
Id., ECF No. 25, PageID #149-53. Fisher claimed that
his indictment and sentence were defective under Apprendi
v. New Jersey, 530 U.S. 466 (2000), because the State
failed to allege his sentence enhancement of life without
parole in the indictment. The circuit court appointed counsel
and held an evidentiary hearing. On May 20, 2014, the circuit
court denied the Rule 40 petition, finding that Fisher's
claims were previously raised and ruled upon in his Rule 35
petition. See Fisher v. State, CAAP-14-0000787 (Haw.
App. June 30, 2015), ECF No. 25, PageID #151-52.
30, 2015, the Hawaii Intermediate Court of Appeals affirmed
the circuit court's decision, additionally holding that
Fisher's Apprendi claims were without merit
because his conviction became final long before
Apprendi was decided and Apprendi does not
apply retroactively to such convictions. Id. at
PageID #152-53. On October 27, 2015, the Hawaii Supreme Court
rejected Fisher's application for certiorari. Fisher
v. State, SCWC 14-0000787 and 14-0000848 (Haw. Oct. 27,
November 17, 2015, Fisher filed the present Petition,
alleging: (1) Indictment Errors (Ground One); (2) Violation
of Due Process (Ground Two); (3) Ineffective Assistance of
Counsel (Ground Three); and (4) Lack of Jurisdiction.
See Pet., ECF 1. This court dismissed the Petition
as second or successive. ECF No. 5. Fisher sought
reconsideration, ECF No. 7, and successfully appealed.
See ECF Nos. 13 (notice of appeal); 14 (application
for certificate of appealability). On ...