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Brown v. Taylor

United States District Court, D. Hawaii

August 25, 2017

HERBERT BROWN, Petitioner,
v.
JOSEPH TAYLOR, Respondent.

          ORDER: (1) ADOPTING AMENDED FINDINGS AND RECOMMENDATION TO DENY HERBERT BROWN'S 28 U.S.C. § 2254 PETITION; AND (2) DENYING A CERTIFICATE OF APPEALABILITY

          J. Michael Seabright, Chief United States District Judge.

         I. INTRODUCTION

         Before the court are Petitioner Herbert Brown's (“Brown”) Objections, ECF Nos. 15, 15-1, [1] to Magistrate Judge Richard L. Puglisi's June 13, 2017 Amended Findings and Recommendation (“Amended F&R”) to Deny Brown's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“§ 2254 Petition”), [2] ECF No. 14; and the Honolulu Department of the Prosecuting Attorney's (the “Government”) Response, ECF No. 17. For the reasons discussed below, the court ADOPTS the Amended F&R, DENIES the § 2254 Petition, and DENIES a certificate of appealability.

         II. BACKGROUND

         On July 23, 2004, Brown was convicted in the Hawaii Circuit Court of the First Circuit (“Hawaii Circuit Court”) of two counts of third-degree sexual assault under Hawaii Revised Statutes (“HRS”) § 707-732(1)(b), [3] and sentenced to two consecutive ten-year terms of imprisonment under Hawaii's extended-term sentencing scheme. See State v. Brown, 2005 WL 2338855, at 1 (Haw. Sept. 26, 2005) (unpublished disposition). Brown's conviction and sentence were affirmed by the Hawaii Supreme Court on September 26, 2005.[4] Id. at 2. Brown filed a petition for writ of habeas corpus in federal court, arguing that his extended-term sentencing violated the Sixth Amendment and Apprendi v. New Jersey, 530 U.S. 466 (2000). See Brown v. White, 2007 WL 1977277, at * 1 (D. Haw. July 3, 2007). The petition was granted and the district court ordered that Brown be re-sentenced. Id.

         In 2007, the Hawaii state legislature amended the extended-term sentencing scheme, HRS §§ 706-661, -662, & -664, to comply with Apprendi. See State v. Jess, 184 P.3d 133, 140 n.3 (Haw. 2008) (discussing legislative history). Thereafter, on October 3, 2007, the state prosecutor filed a second motion for an extended-term of imprisonment that set forth aggravating circumstances. Gov't Ex. “H, ” ECF No. 12-9. On November 3, 2009, the Hawaii Supreme Court denied a petition for writ of mandamus and/or prohibition by which Brown sought an order vacating the denials of motions he filed challenging both the Hawaii Circuit Court's jurisdiction and the constitutionality of the amended extended-term sentencing scheme. Pet. Ex “A, ” ECF No. 1-2. The court found that Brown “fail[ed] to demonstrate a clear and indisputable right to relief.” Id. at 1.

         On May 8, 2012, the Hawaii Circuit Court held an extended-term eligibility trial with a new jury, which found that Brown was a persistent and multiple offender under the amended HRS § 706-662(1) and (2), and that an extended sentence was necessary to protect the public. Gov't Ex. “E” at 75-79, ECF No. 12-6. A new judgment was issued on August 3, 2012, re-sentencing Brown to the same sentence as he originally received -- two consecutive ten-year terms of imprisonment. State v. Brown, 2015 WL 5774713, at *1 (Haw. Ct. App. Sept. 30, 2015). Brown's subsequent appeal was denied by the Hawaii Intermediate Court of Appeals (the “ICA”) on September 30, 2015.[5] Id. at *4. And on February 8, 2016, the Hawaii Supreme Court denied Brown's application for writ of certiorari. See State v. Brown, 2016 WL 509425, at *1 (Haw. Feb. 8, 2016).

         On December 6, 2016, Brown filed the instant § 2254 Petition asserting the following nine claims arising from both his original trial and subsequent eligibility trial for an extended-term sentence: (1) ineffective assistance of counsel; (2) the Hawaii Circuit Court improperly admitted evidence of his prior conviction; (3) his indictment, which charged him with touching the victims' vaginas rather than their vulvae, provided insufficient notice of his charges; (4) he should have been tried in family court; (5) Hawaii's amended extended-term sentencing scheme violates the Sixth Amendment; (6) the amended extended-term sentencing scheme is an ex post facto law; (7) empaneling a second jury for the eligibility trial violated double jeopardy; (8) the verdict form used at the eligibility trial violated due process; and (9) HRS § 706-668.5(3)[6] is “unconstitutionally ambiguous.” Am. F&R at 5 (citing § 2254 Mem., ECF No. 1-1).

         The Amended F&R found that for each of his claims, Brown failed to establish a violation of the constitution, laws, or treaties of the United States.[7] Id. at 7-20. More specifically, the Amended F&R found that: (1) “Brown's claim of ineffective assistance of counsel is conclusory and without factual support” and thus, Brown failed to establish “that he received ineffective assistance of counsel in violation of the Sixth Amendment, ” id. at 9; (2) “Brown has not shown that there were impermissible purposes for admitting evidence of his prior conviction, or that its admission rendered his trial fundamentally unfair” such that it would violate the due process clause, id. at 11; (3) by “referencing the applicable statute . . . the indictment provided fair notice to Mr. Brown of his charges under the Fifth and Sixth Amendments, ” id. at 13; (4) “Brown has not established that being tried by the [Hawaii Circuit Court] violated . . . any [federal] law, ” id. at 14; (5) Hawaii's amended [extended-term sentencing] scheme and Mr. Brown's second sentence comply with the Sixth Amendment as interpreted by Apprendi [and therefore] Brown has not established that he is being held in state custody in violation of the Sixth Amendment, ” id. at 15; (6) “Brown was not disadvantaged by the new sentencing scheme” and therefore its application at “Brown's eligibility trial did not violate the ex post facto provision, ” id. at 17; (7) because “Brown's eligibility trial was a re-trial of sentencing enhancements, the Double Jeopardy Clause does not apply, ” id. at 17-18; (8) with respect to Brown's claim that “the verdict form finding him guilty of an extended sentence violated due process, ” his “argument and factual allegations are not supported by the record [and thus]

         Brown has not established that he is being held in violation of due process, ” id. at 18; and (9) HRS § “706-668.5 and its amendments do not apply to Mr. Brown's current sentence, which was imposed in 2012, ” and therefore, “Brown has not established that he is being held in custody by an unconstitutionally ambiguous statute, ” id. at 19. Thus, the Amended F&R recommended that the § 2254 Petition be denied with prejudice, and that a certificate of appealability be denied. Id. at 20-21.

         Brown filed the instant Objections on July 5, 2017, and the Government filed its Response on July 11, 2017. ECF Nos. 15, 17.

         III. STANDARD OF REVIEW

         A. Review of a Magistrate Judge's Findings and Recommendations

         When a party objects to a magistrate judge's findings and recommendations, the district court must review de novo those portions to which the objections are made and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673 (1980); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (“[T]he district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.”). The district court reviews those unobjected portions of a findings and recommendations for clear error. H. v. Dep't of Educ., 2016 WL 4522177, at *3 (D. Haw. Aug. 29, 2016).

         Under a de novo standard, this court reviews “the matter anew, the same as if it had not been heard before, and as if no decision previously had been rendered.” Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006); United States v. Silverman, 861 F.2d 571, 576 (9th Cir. 1988). The district court need not hold a de novo hearing; however, it is the court's obligation to arrive at its own independent conclusion about those portions of the magistrate judge's findings and recommendations to which a party objects. United States v. Remsing, 874 F.2d 614, 618 (9th Cir. 1989).

         B. Review of § 2254 Habeas Corpus Petitions

         A federal district court may consider a habeas petition from a state prisoner “only on the ground that he is in custody in violation of the Constitution or law or treaties of the United States.” 28 U.S.C. § 2254(a). A federal writ of habeas corpus is not available for any alleged error in the application or interpretation of state law. See Swarthout v. Cooke, 562 U.S. 216, 221 (2011) (per curiam) (holding that it is of no federal concern whether a state law was correctly applied); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

         Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a district court may not grant habeas relief under § 2254 unless a state court's adjudication on the merits of a claim was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2); Williams v. Taylor, 529 U.S. 362, 412 (2000).

         This AEDPA standard is highly deferential, requiring a petitioner to show that “the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” White v. Wheeler, 136 S.Ct. 456, 460 (2015) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). The court considers the “last reasoned decision” by a state court addressing a particular issue. Miles v. Ryan, 713 F.3d 477, 486 (9th Cir. 2012). A summary denial by a state court is presumed to be a denial on the merits of a petitioner's claim. Stancle v. Clay, 692 F.3d 948, 957 & n.3 (9th Cir. 2012). But where it is clear that a state court did not rule on the merits of a claim, the district court must review that claim de novo. Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir. 2011).

         Generally, a habeas petitioner must first exhaust his claims by presenting them to the state's highest court, either through direct appeal or collateral proceedings, before a federal court will consider the merits of those claims. See Section 2254(b)(1);[8] Rose v. Lundy, 455 U.S. 509, 519 (1982). To exhaust a claim, a petitioner must “reference specific provisions of the federal constitution or cite to federal case law.” Robinson v. Schriro, 595 F.3d 1086, 1101 (9th Cir. 2010). Alternatively, a petition must have “cited to . . . state cases involving the legal standard for a federal constitutional violation.” Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). Neither “[t]he mere similarity between a claim of state and federal error . . . [nor] general appeals to broad constitutional principles, such as due process, . . . and the right to a fair trial, are []sufficient to establish exhaustion.” Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citations omitted).

         However, after de novo review, the court may dismiss unexhausted and/or procedurally-defaulted claims that are plainly meritless. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); see also Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005) (“[A] federal court may deny an unexhausted petition on the merits only when it is perfectly clear that the applicant does not raise even a colorable federal claim.”).

         Berghuis v. Thompkins, 560 U.S. 370, 390 (2010), clarified that courts may not grant habeas relief after de novo review without first determining whether AEDPA deference to state court decisions applies, but they may deny habeas relief after de novo review. That is, courts can “deny writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear whether AEDPA deference applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review.” Id. (citing 28 U.S.C. § 2254(a)). Thus, a court may “reject a claim on the merits and forgo an analysis of procedural default.” Ismael Rosales Aniceto v. Foulk, 2017 WL 2189681, at *6 (E.D. Cal. May 18, 2017); see Lambrix v. Singletary, 520 U.S. 518, 523 (1997) (holding that a court reviewing a habeas claim, in the interest of judicial economy, may bypass an asserted procedural bar to consider the claim on the merits); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (“Procedural bar issues are not infrequently more complex than the merits issues presented by the appeal, so it may well make sense in some instances to proceed to the merits if the result will be the same”); Gales v. Kernan, 2017 WL 1377737, at *6 (C.D. Cal. Mar. 7, 2017) (declining to consider whether habeas claim was exhausted because the claim fails under de novo review).

         IV. DISCUSSION

         A. Objections to the Amended F&R

         Brown's Objections claim that (1) his indictment is invalid; (2) the Hawaii Circuit Court lacked jurisdiction over his case; (3) the Hawaii Circuit Court violated the constitutional ex post facto, due process, and double jeopardy clauses; and (4) he received ineffective assistance of counsel. Objs. at 2; Letter at 1, ECF No. 15-1. The Objections also include new claims raised for the first time: (1) the Hawaii Paroling Authority (“HPA”) discriminated against him;[9] (2) Hawaii law labeling him a sex offender and providing public notice of such status constitutes unlawful discrimination in violation of the Hawaii constitution; and (3) the teaching of evolution in schools violates the First Amendment to the United States constitution. Id. at 2-3.

         1. New Claims

         The court declines to consider the claims Brown raises for the first time in his Objections. See Akhtar v. Mesa, 698 F.3d 1202, 1208 (9th Cir. 2012) (recognizing that the court may refuse to consider new arguments raised in objections to a magistrate judge's report and recommendation); see also Greene v. Henry, 302 F.3d 1067, 1070 n.3 (9th Cir. 2002) (declining to consider three new claims because they were not made in the original habeas petition); Greenhow v. Sec'y Health & Human Servs., 863 F.2d 633, 638-39 (9th Cir. 1988) (“[A]llowing parties to litigate fully their case before the magistrate and, if unsuccessful, to change their strategy and present a different theory to the district court would frustrate the purpose of the Magistrate Act.”), overruled on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (per curiam); Collins v. Arnold, 2017 WL 2468767, at *1 (C.D. Cal. June 6, 2017) (declining to consider new habeas claim raised for the first time in objections to a magistrate judge's report and recommendation in part because the claim had not been exhausted in state court).

         But even if the court were to consider Brown's new claims de novo, they would fail, and dismissal would be warranted. See 28 U.S.C. 2254(b)(2); Berghuis, 560 U.S. at 390; Cassett, 406 F.3d at 623-24. Brown's allegations of discrimination by the HPA are conclusory, and fail to show that Brown is being held in custody in violation of federal discrimination law. Brown's claim that labeling him a sex offender violated the Hawaii constitution does not raise a federal issue. And Brown fails to allege how the teaching of evolution in schools causes him to be held in custody in violation of the United States constitution or federal law.

         2. Remaining Claims

         The court addresses each of Brown's Objections to the Amended F&R.

         a. Challenge ...


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