United States District Court, D. Hawaii
HARDY K. AH PUCK, JR., #A0723792 Petitioner,
STATE OF HAWAII, Respondent.
ORDER DISMISSING AMENDED PETITION WITH LEAVE TO
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE.
the Court is Pro Se Petitioner Hardy K. Ah Puck, Jr.'s
amended petition for writ of habeas corpus brought pursuant
to 28 U.S.C. § 2254(d). Am. Pet., ECF No. 13. Ah Puck
remains incarcerated at the Maui Community Correctional
Center (“MCCC”), and challenges the revocation of
his probation, although the contours of that challenge are
unclear. For the following reasons, the Amended Petition is
DISMISSED. Ah Puck is granted leave to file another amended
petition on or before September 8, 2017 that strictly
complies with the directions in this Order. Failure to follow
these instructions will result in dismissal of this action
without further leave to amend.
April 14, 2017, Ah Puck filed his original Petition
challenging probation revocation proceedings in State v.
Ah Puck, 2PC121000560 (Haw. 2d Cir. Ct.) and State
v. Ah Puck, 2PC121000272 (Haw. Family Ct.). See
Pet., ECF No. 1; see also eCourt Kokua,
visited June 19, 2017).Ah Puck provided few details regarding
either case or the probation revocation proceedings.
Generally, he that his probation was revoked because he
failed to report to his probation officer while he was in the
hospital recovering from surgery. See Pet., ECF No.
1, PageID #6. Ah Puck argued that this was an abuse of
claimed that he “forgot to file an appeal . . . so they
dismissed all the Petitions, ” and gave him “no
chance to defend my self.” Id., PageID #4. He
alleged that his motions or pleadings were “waived and
or dismissed” on or about January 17, 2017. Ah Puck
failed to explain these statements or otherwise allege that
he had exhausted his state remedies regarding the revocation
4, 2017, this Court dismissed the original Petition. Order,
ECF No. 9. The Order directed Ah Puck to file an amended
petition that (1) named a proper respondent; and set forth
the (2) underlying facts regarding the revocation of his
probation, convictions, and sentences; (3) federal bases for
his claims; (4) steps he has taken to exhaust his claims in
the state court; and (5) relevant dates that demonstrate the
timeliness of his Petition. See id.
5, 2017, Ah Puck filed the Amended Petition. ECF No. 13. It
contains far less detail than the original Petition. Ah Puck
claims his probation was “violated by probation officer
without valid cause, ” (Ground One), and that he was
“[d]enied right to a fair and speedy trial”
(Ground Two). Id., PageID #50, 52.
Amended Petition still fails to name the MCCC warden or
another state official who has the ability to release Ah
Puck, and it may be dismissed on this basis alone.
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); Brittingham v. United
States, 982 F.2d 378, 379 (9th Cir. 1992). Even if the
Court substituted a proper respondent, however, the Amended
Petition must be dismissed.
unclear, it appears that Ah Puck is alleging that his right
to procedural due process under the Fourteenth Amendment was
violated during probation revocation proceedings in
2PC121000560 and 2FC121000272. Yet the Amended Petition fails
to provide any facts regarding his revocation
proceedings. Ah Puck first complains that his probation
officer, Craig Hirayasu, issued a revocation warrant for his
arrest despite Hirayasu's knowledge that Ah Puck was in
the hospital and was unable to report to the probation
office. He next alleges that he has been incarcerated for
more than a year and has not had a hearing with Judge Cahill,
“[r]egardless of whether I win the appeal.” Am.
Pet., ECF No. 13, PageID #52. Beyond these vague statements,
Ah Puck provides nothing explaining how his right to due
process was violated.
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).
Equally important, a petitioner must, at a minimum, 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). As this Court informed Ah Puck in
its Order dismissing the original Petition:
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.
ECF No. 9, PageID #36 (directing Ah Puck to “clarify
the federal bases for his claims”). The Amended
Petition fails to allege the constitutional bases for Ah
Puck's challenge to the revocation of probation or facts
in support of such claims.
Due Process for ...