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Carter v. Ornellas

United States District Court, D. Hawaii

November 13, 2017

SAMUEL CARTER, #A0247045, Petitioner,
v.
SEAN ORNELLAS, Respondent.

          ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

          DERRICK K. WATSON UNITED STATES DISTRICT JUDGE.

         Before the court is pro se petitioner Samuel Carter's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus. ECF No. 1. Carter challenges his consecutive, extended-term sentences imposed by the Circuit Court of the First Circuit, State of Hawaii (“circuit court”) in State v. Carter, CR. No. 99-2002, on March 16, 2004. After careful consideration of the entire record, the court DISMISSES the Petition with prejudice as untimely. Any request for a certificate of appealability (“COA”) is DENIED.

         I. BACKGROUND

         On March 2, 2000, Carter was convicted of Theft in the Second Degree (Count 1), Promoting a Dangerous Drug in the Third Degree (Count 2), and Unlawful Use of Drug Paraphernalia (Count 3). See Resp't App. B, ECF No. 8-2. The circuit court sentenced Carter to an extended ten-year term on Count 1, to run consecutively to two extended ten-year concurrent terms on Counts 2 and 3. Resp't App. C, ECF No. 8-3. The Hawaii Supreme Court affirmed Carter's conviction on September 23, 2003. Resp't App. G, ECF No. 8-7.

         On March 16, 2004, the circuit court issued a Second Amended Judgment; Guilty Conviction and Sentence. Resp't App. H. The circuit court resentenced Carter to an extended ten-year term on Count 1, with no mandatory minimum, to be served consecutively to an extended ten-year term on Count 2, with a five-year mandatory minimum, to be served concurrently with an extended ten-year term on Count 3, with no mandatory minimum.

         On or about September 20, 2006, Carter was released on parole. Resp't App. I, ECF No. 8-9. Nearly nine years later, on or about January 16, 2015, Carter's parole was revoked. Id. On his Warrant of Arrest, the Hawaii Paroling Authority noted that Carter's maximum parole term expired November 2, 2018. Id.

         On March 4, 2015, the Department of Public Safety notified Carter that he had been over-credited pre-sentence credits to his sentence, and that his maximum release date had been recalculated as September 26, 2019. Id., PageID #111. On December 10, 2015, Carter's attorney on appeal, Dwight C.H. Lum, Esq., wrote the Department of Public Safety to explain that this calculation was incorrect, and to request that Carter's maximum term date be amended to its original date, November 2, 2018. Id., PageID #114-15.

         On September 2, 2016, Carter filed a state post-conviction petition pursuant to Rule 40 of the Hawaii Rules of Penal Procedure (“HRPP”) (“Rule 40 Petition”), Carter v. State, S.P.P. No. 16-1-0024. Resp't App. I, ECF No. 8-9. Carter argued that his sentence was illegal under Apprendi v. New Jersey, 530 U.S. 466 (2000), [1]and that the Department of Public Safety had illegally recalculated his maximum release date. After finding that Carter may have a colorable claim under Apprendi, the circuit court appointed him counsel. Resp't App. J, ECF No. 8-10.

         On June 27, 2017, the circuit court denied Carter's Rule 40 Petition. Resp't App. K, ECF No. 8-11. The circuit court first found that Carter's challenge to the change in his maximum release date was moot, because it had already been reset to November 2, 2018. Id., PageID #141. The circuit court then rejected Carter's Apprendi claim, because his sentences were final before the Hawaii Supreme Court had determined that Hawaii's extended term sentencing scheme was unconstitutional in State v. Maugaotega, 115 Haw. 432 (2007).[2] Id., PageID #142-43.

         On July 26, 2017, Carter filed a notice of appeal in the Intermediate Court of Appeals (“ICA”), Resp't App. L, ECF No. 8-12; Carter v. State, CAAP-17-0000569 (Haw. App. 2017), avail. at: https://jimspss1.courts.state.hi.us/JEFS. This appeal is currently pending before the ICA.

         Two days before filing his notice of appeal, on July 24, 2017, Carter filed the present federal Petition. ECF No. 1. Carter asserts that (1) his sentences violate the rule set forth in Apprendi, because the judge, rather than the jury, determined the bases for setting his extended, consecutive sentences; and (2) his trial, sentencing, and appellate attorneys were ineffective. See Pet., ECF No. 1.

         II. 28 U.S.C. § 2244

         Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a one-year statute of limitation applies to all habeas petitions filed by prisoners in state custody, subject to ...


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