United States District Court, D. Hawaii
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF APPEALABILITY
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE.
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.
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.
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
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or about January 16, 2015, Carter's parole was revoked.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.
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
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), 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.
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). Id., PageID #142-43.
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:
appeal is currently pending before the ICA.
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.
28 U.S.C. § 2244
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 ...