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Ah Puck v. State

United States District Court, D. Hawaii

May 4, 2017

HARDY K. AH PUCK, JR., #A0723792 Petitioner,
v.
STATE OF HAWAII, Respondent.

          ORDER DISMISSING PETITION WITH LEAVE TO AMEND AND DENYING PENDING MOTIONS

          Derrick K. Watson, United States District Judge

         Pro se Petitioner Hardy K. Ah Puck, Jr., who is incarcerated at the Maui Community Correctional Center (“MCCC”), has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, a Motion for Temporary Restraining Order, a Motion for an Order to Award Recompense, and a Request for Default Judgment. See ECF Nos. 1, 4, 6, 7.

         The Petition is DISMISSED without prejudice and Petitioner's Motions are DENIED. Petitioner may file an amended petition on or before June 9, 2017. Failure to comply with the court's instructions and timely file an amended petition will result in dismissal of this action without prejudice.

         I. BACKGROUND

         Petitioner challenges probation revocation proceedings in State v. Ah Puck, 2PC121000560 (Haw. 2d Cir. Ct.) and State v. Ah Puck, 2FC121000272 (Haw. Family Ct.), allegedly held on March 24, 2016. See Petition, ECF No. 1; see also eCourt Kokua, https://jimspss1.courts.state.hi.us/JEFS (last visited May 2, 2017). Petitioner provides no details concerning his underlying convictions or sentences in these cases, nor does he explain what occurred at the revocation hearing. Rather, Petitioner complains that, although he told his probation officer, Craig Hirayasu, that he missed his probation appointment because he was in the hospital recovering from surgery, his probation was nonetheless revoked. He apparently claims that the revocation of his probation was an abuse of discretion, because he allegedly had a valid excuse for his probation violation. See Pet., ECF No. 1, PageID #6 (Ground One).

         Petitioner states that he “forgot to file an appeal so it was waived or dismissed.” Id., PageID #5. He challenged the proceedings in the state court at some point, however, because he states that on or about January 17, 2017, his petitions were “waived and or dismissed.” Id. He says that he “did not have a chance to appeal [the dismissal] of any petition, so I filed a prisoner civil rights complaint form, ” referring to Ah Puck v. Werk, Civ. No. 17-00154 DKW (D. Haw. 2017) (complaint dismissed with leave to amend May 2, 2017).

         II. THE PETITION IS DISMISSED

         There are several problems with the Petition that must be cured before the Court can consider it.

         First, a petitioner seeking a writ of habeas corpus must name the state officer having custody of him as respondent to the petition. See Rule 2(a) of the Rules Governing § 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir.1996); Stanley v. Cal. Sup. Ct., 21 F.3d 359, 360 (9th Cir. 1994). The correct respondent is normally the warden of the facility in which the petitioner is incarcerated, or the chief officer in charge of state penal institutions. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992). Petitioner is DIRECTED to file an amended petition naming the official with the ability to release him from custody as Respondent.

         Second, Petitioner apparently attacks the revocation of his probation in 2PC121000560, but he also refers to 2FC121000272, making it unclear which probation revocation proceeding he challenges. “A petitioner who seeks relief from judgments of more than one state court must file a separate petition covering the judgment or judgments of each court.” See Rule 2(e) of the Rules Governing § 2254 Cases. Petitioner is DIRECTED to clarify which revocation of probation sentence he challenges if he files an amended petition.

         Third, Petitioner fails to specify the federal bases for his claims. That is, he fails to allege “that he is in custody in violation of the Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2254(a). Rule 2(c)(2) of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) requires a federal habeas petition to state the facts that support each ground for relief. See also Mayle v. Felix, 545 U.S. 644, 654-55 (2005) (stating Habeas Rule 2(c) imposes “a more demanding” pleading standard than the Federal Rules of Civil Procedure require for ordinary civil cases). A federal habeas petitioner “is expected to state facts that point to a real possibility of constitutional error.” Wacht v. Cardwell, 604 F.2d 1245, 1247 (9th Cir. 1979) (emphasis added). When, as here, a habeas claim makes only conclusory allegations, the petitioner is not entitled to federal habeas relief. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations . . . [un]supported by a statement of specific facts do not warrant habeas relief.”); Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995) (same). The Court cannot make an educated guess as to what federal provisions Petitioner alleges were violated during his state proceedings, or what facts support such claims. If Petitioner is claiming that the state court abused its discretion by failing to credit his explanation for violating the conditions of probation, which would be a violation of state law at most, he fails to state a claim pursuant to 28 U.S.C. § 2254. Petitioner is DIRECTED to clarify the federal bases for his claims.

         Fourth, Petitioner repeatedly states that he has not appealed his revocation proceedings, nor properly filed a post-conviction petition pursuant to Rule 40 of the Hawaii Rules of Penal Procedure. See Pet., ECF No. 1, PageID #4-9. State prisoners who wish to challenge their confinement in federal court by a petition for writ of habeas corpus are first required to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every issue sought to be raised in federal court. See 28 U.S.C. § 2254(b)©; Granberry v. Greer, 481 U.S. 129, 134 (1987); Rose v. Lundy, 455 U.S. 509 (1982); McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir. 1988).

         State remedies must be exhausted except in unusual circumstances. Granberry, 481 U.S. at 134. If state remedies have not been exhausted, the district court must dismiss the petition. Rose, 455 U.S. at 510; Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988). A dismissal solely for failure to exhaust is not a dismissal on the merits, Howard v. Lewis, 905 F.2d 1318, 1322-23 (9th Cir. 1990), and does not bar a petitioner from returning to federal court after state remedies have been exhausted. If Petitioner files an amended petition, he must clarify the steps he has taken to exhaust his federal claims in the state courts or explain why exhaustion should be waived.

         Fifth, Petitioner is challenging revocation proceedings that he alleges occurred on March 24, 2016, more than a year before he signed the instant Petition on April 8, 2017. A one-year limitation period applies to applications for writs of habeas corpus, subject to certain tolling conditions. See 28 U.S.C. § 2244(d)(1)[1]and (2) (tolling the statute while a “properly filed” State post-conviction petition is pending). Petitioner is NOTIFIED that the Petition appears time-barred on its face and is subject to ...


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