United States District Court, D. Hawaii
ORDER: (1) ADOPTING AMENDED FINDINGS AND
RECOMMENDATION TO DENY HERBERT BROWN'S 28 U.S.C. §
2254 PETITION; AND (2) DENYING A CERTIFICATE OF
Michael Seabright, Chief United States District Judge.
the court are Petitioner Herbert Brown's
(“Brown”) Objections, ECF Nos. 15, 15-1,
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”),  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.
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),
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2005) (unpublished disposition).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. 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.
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.
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. 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).
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) is
“unconstitutionally ambiguous.” Am. F&R at 5
(citing § 2254 Mem., ECF No. 1-1).
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. 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]
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.
filed the instant Objections on July 5, 2017, and the
Government filed its Response on July 11, 2017. ECF Nos. 15,
STANDARD OF REVIEW
Review of a Magistrate Judge's Findings and
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.
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).
Review of § 2254 Habeas Corpus Petitions
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).
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).
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).
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); 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
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.”).
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).
Objections to the Amended F&R
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
(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
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).
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.
court addresses each of Brown's Objections to the Amended