United States District Court, D. Hawaii
HARDY K. AH PUCK, JR., #A0723792 Petitioner,
STATE OF HAWAII, Respondent.
ORDER DENYING MOTION TO STAY
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE.
has filed a Motion to Stay this action for writ of habeas
corpus brought pursuant to 28 U.S.C. § 2254. ECF No. 20.
Petitioner apparently seeks a stay while state court
proceedings regarding early termination of his term of
probation in State v. Ah Puck, 2PC121000560 (Haw. 2d
Cir. Ct.) and State v. Ah Puck, 2PC121000272 (Haw.
Family Ct.), are pending. See Pet., ECF No. 1;
see also eCourt Kokua,
visited Sept. 11, 2017).
Motion to Stay is DENIED without prejudice. Petitioner is
ORDERED to file an amended petition that complies with the
Court's previous Orders on or before October 6, 2017.
April 14, 2017, Petitioner commenced this habeas action to
challenge the revocation of his probation in 2PC121000560 and
2PC121000272. Petitioner alleged that his probation was
improperly revoked because, although he failed to report to
his probation officer when required, he was unable to do so
because he was in the hospital recovering from surgery.
See Pet., ECF No. 1, PageID #6.
4, 2017, the Court dismissed the Petition with leave granted
to amend. Order, ECF No. 9. Petitioner was ordered to (1)
name a proper respondent; and to set forth the (2) underlying
facts regarding the revocation of probation; (3) federal
bases for his claims; (4) steps he had taken to exhaust his
claims; and (5) relevant dates regarding his claims.
5, 2017, Petitioner filed an Amended Petition. ECF No. 13. On
June 21, 2017, the Court dismissed the Amended Petition for
its failure once again to name a proper respondent, clarify
the federal bases for Petitioner's claims, and explain
the steps Petitioner had taken to exhaust his claims. Order,
ECF No. 19. Petitioner was directed to file an amended
petition on or before September 8, 2017, and was notified
that a failure to comply with the Order's instructions
would result in dismissal of this action.
August 30, 2017, Petitioner filed the Motion to Stay and a
notice of change of address that indicates he has been
released from custody. ECF No. 20. Public records show that
Petitioner has been released on probation and that a hearing
is scheduled on September 28, 2017, in the Hawaii Second
Circuit Court, regarding early termination of probation in
2PC121000560. See Hawaii SAVIN:
fails to provide any reason why this action should be stayed
in its present procedural posture.
Petitioner's two earlier petitions have been dismissed
and he has not filed an amended petition complying with the
Court's previous orders. There is therefore nothing
before the Court to stay.
Petitioner has a hearing scheduled regarding the early
termination of his term of probation that may resolve any
issues Petitioner is challenging. This hearing may also
resolve whether Petitioner has fully exhausted his claims and
whether state court remedies are still available. See
Rose v. Lundy, 455 U.S. 509, 510 (1982).
although the Court has authority to stay certain unexhausted
habeas petitions, that option is available only in limited
circumstances. Rhines v. Weber, 544 U.S. 269, 276,
(2005). As the Rhines Court stated:
[S]tay and abeyance is only appropriate when the district
court determines there was good cause for the
petitioner's failure to exhaust his claims first in state
court. Moreover, even if a petitioner had good cause for that
failure, the district court would abuse its discretion if it
were to grant him a stay when his unexhausted claims are
plainly meritless. Cf. 28 U.S.C. § 2254(b)(2)
(“An application for a writ of habeas corpus may be
denied on the ...