United States District Court, D. Hawaii
HARDY K. AH PUCK, JR., #A0723792 Petitioner,
STATE OF HAWAII, Respondent.
ORDER DISMISSING PETITION WITH LEAVE TO AMEND AND
DENYING PENDING MOTIONS
Derrick K. Watson, United States District Judge
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.
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.
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,
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).
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).
THE PETITION IS DISMISSED
are several problems with the Petition that must be cured
before the Court can consider it.
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.
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
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.
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).
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.
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)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 ...