Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fisher v. Taylor

United States District Court, D. Hawaii

November 17, 2016

STEVEN L. FISHER, #A0002539, Petitioner,
v.
J. TAYLOR, Respondent.

          ORDER DISMISSING PETITION AS TIME-BARRED AND DENYING CERTIFICATE OF APPEALABILITY

          Derrick K. Watson United States District Judge.

         I. INTRODUCTION

         Before 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, [1] in State v. Fisher, 3PC00-0-006561.

         Respondent 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.

         II. BACKGROUND

         Fisher 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).[2] On September 13, 1982, the Hawaii Supreme Court affirmed Fisher's conviction and sentence.

         On or 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 97-99.

         On 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.

         On 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 appeal.

         In 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 then.

         On May 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 untimely. Id.

         Nine 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.

         On June 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, 2015).

         On 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.