FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CIVIL NO.
Crandall Penaflor Plaintiff-Appellant pro se.
Patricia Ohara Robyn B. Chun Deputy Attorneys General for
Defendant-Appellee Boyd P. Mossman.
A. Sereno for Defendant-Appellee Thomas P. Griswold.
W. Kolbe Caleb P. Rowe Deputies Corporation Counsel for
Defendants-Appellees Richard A. Priest, Jr. and County of
NAKAMURA, CHIEF JUDGE, AND FUJISE AND LEONARD, JJ.
NAKAMURA, CHIEF JUDGE
Crandall Penaflor (Penaflor) was convicted of two counts of
first-degree sexual assault, first-degree burglary,
kidnapping, and first-degree terroristic threatening.
Penaflor filed a direct appeal of these convictions and
numerous post-conviction challenges, but was unsuccessful in
overturning these convictions.
2014, Penaflor, appearing pro se, filed a "State Tort
Civil Complaint" (Civil Tort Complaint) against
participants in his criminal case: the presiding judge, the
Deputy Prosecuting Attorney, his appointed defense counsel,
and the County of Maui (County). The Circuit Court of the
Second Circuit (Circuit Court) dismissed Penaflor's Civil
Tort Complaint. It also entered an order declaring Penaflor
to be a vexatious litigant and imposing prefiling
restrictions on Penaflor's ability to file new
appeal, Penaflor contends that the Circuit Court erred in:
(1) dismissing his Civil Tort Complaint; and (2) declaring
him to be a vexatious litigant pursuant to Hawaii Revised
Statutes (HRS) Chapter 634J.
appeal presents the question of whether Penaflor, who has
failed to overturn his convictions, can file a civil tort
action raising claims that challenge the validity of his
convictions. We conclude that the answer to this question is
"no." We therefore affirm the Circuit Court's
dismissal of Penaflor's Civil Tort Complaint.
respect to the Circuit Court's vexatious litigant order
pursuant to HRS Chapter 634J, we conclude that the Circuit
Court erred in issuing this order. In finding that Penaflor
satisfied the criteria for a vexatious litigant, the Circuit
Court apparently relied upon Penaflor's prior filing of
unsuccessful Hawai'i Rules of Penal Procedure (HRPP) Rule
40 (2006) and federal habeas corpus petitions. However,
Penaflor's prior HRPP Rule 40 and federal habeas corpus
petitions do not constitute "civil actions or
proceedings" for purposes of HRS Chapter 634J, and
therefore, the Circuit Court could not rely on these
petitions to support its order declaring Penaflor to be a
vexatious litigant. Because it appears that the Circuit Court
relied upon an improper basis in issuing its vexatious
litigant order, and because the record does not support a
vexatious litigant finding, we vacate the vexatious litigant
18, 1990, a Maui grand jury returned an indictment against
Penaflor, charging him with: first-degree burglary of the
residence of D.C. (Count 1); first-degree terroristic
threatening of D.C. with the use of a handgun (Count 2);
first-degree terroristic threatening of K.S. with the use of
a handgun (Count 3); kidnapping of D.C. (Count 4);
first-degree robbery of D.C. with a handgun (Count 5);
first-degree sexual assault of D.C. by strong compulsion, to
wit, fellatio (Count 6); and first-degree sexual assault of
D.C. by strong compulsion, to wit, vaginal intercourse (Count
7). After a jury trial, Penaflor was found guilty of Counts
1, 2, 3, 4, 6, and 7.
presiding judge at Penaflor's trial was the Honorable
Boyd P. Mossman (Judge Mossman), the Deputy Prosecuting
Attorney in Penaflor's case was Richard A. Priest, Jr.
(Priest), and Penaflor's appointed defense counsel was
Thomas P. Griswold (Griswold). The Circuit Court sentenced
Penaflor to consecutive terms of imprisonment as to each
count of conviction, for a total term of seventy years. The
Circuit Court entered its Judgment on September 10, 1991.
filed a direct appeal from his Judgment. On August 2 6, 1992,
the Hawai'i Supreme Court issued a memorandum opinion
affirming the September 10, 1991, Judgment. State v.
Penaflor, No. 15629 (Hawai'i Aug. 26, 1992) (mem.).
January 22, 1998, Penaflor filed, pro se, an HRPP Rule 40
petition (First Rule 40 Petition). Penaflor sought relief
based his claims that: (1) his counsel had provided
ineffective assistance; (2) his convictions were obtained
through perjured witness testimony; and (3) the jury was
biased against him. The Circuit Court denied Penaflor's
First Rule 40 Petition without a hearing on the grounds that
Penaflor had failed to establish ineffective assistance of
counsel and had waived his remaining claims by failing to
raise them on direct appeal. Penaflor did not appeal the
Circuit Court's order denying his First Rule 40 Petition.
February 28, 2000, Penaflor filed, pro se, a Motion for
Correction of Illegal Sentence pursuant to HRPP Rule 35 (Rule
35 Motion). The Circuit Court denied Penaflor's Rule 35
Motion. On appeal, this court affirmed the Circuit
Court's denial of Penaflor's Rule 35 Motion, but
noticing plain error, we reversed Penaflor's first-degree
terroristic threatening conviction on Count 2, ruling that it
merged with his kidnapping conviction on Count 4. State
v. Penaflor, No. 23939, 2002 WL 31375566, at *1
(Hawai'i App. Oct. 21, 2002) (SDO) .
September 11, 2006, Penaflor filed, pro se, his second HRPP
Rule 40 petition (Second Rule 40 Petition). The Circuit Court
denied Penaflor's Second Rule 40 Petition on the grounds
that his claims were either previously ruled upon, or had
been waived by his failure to raise them in the First Rule 40
Petition. Penaflor appealed the Circuit Court's order
denying his Second Rule 40 Petition. On June 24, 2008, this
court affirmed the Circuit Court's order, holding that
Penaflor failed to present a colorable claim because all the
claims in his Second Rule 40 Petition had been waived or
previously ruled upon. Penaflor v. State, No. 28527,
2008 WL 2503259, at *l-3 (Hawai'i App. June 24, 2008)
(SDO). The Hawai'i Supreme Court denied Penaflor's
application for writ of certiorari from this court's
2009, the Circuit Court held a resentencing hearing in
response to this court's decision to reverse
Penaflor's conviction on Count 2. Penaflor was
represented by counsel, appeared by telephone, and requested
that his sentences be imposed to run concurrently. The
Circuit Court issued an Amended Judgment which sentenced
Penaflor to the same consecutive terms of imprisonment, minus
the five-year term for Count 2 that this court had reversed,
resulting in a total term of imprisonment of 65 years.
Penaflor appealed from the Amended Judgment. This court
affirmed the Amended Judgment, explaining that in reversing
Count 2, we did not authorize the Circuit Court to change its
prior sentence other than to remove the sentence for Count 2.
State v. Penaflor, No. 30313, 2011 WL 716199, at *2
(Hawai'i App. Feb. 25, 2011) (SDO). Penaflor, pro se,
filed an application for writ of certiorari with the
Hawai'i Supreme Court, raising numerous issues. The
supreme court denied Penaflor's application for writ of
certiorari. State v. Penaflor, No. SCWC-30313, 2011
WL 2165128 (June 2, 2011) .
January 20, 2012, Penaflor filed, pro se, a second petition
for writ of habeas corpus in the United States District Court
for the District of Hawai'i (Federal District Court)
. Penaflor raised two grounds for relief:
(1) his consecutive sentences violated Apprendi v. New
Jersey, 530 U.S. 466 (2000), and state law; and (2)
ineffective assistance of trial and appellate counsel. The
Federal District Court denied Penaflor's
Apprendi-related claim as procedurally barred and
without merit. Penaflor v. Thomas, Civil No.
12-00050 LEK-BMK, 2012 WL 1802468, at *6 (D. Hawai'i May
17, 2012). The Federal District Court denied Penaflor's
claim of ineffective assistance of trial and appellate
counsel because he failed to show cause for his procedural
default and because he failed to demonstrate actual
innocence. Id. at *7-8. With respect to actual
innocence, the Federal District Court stated: "Penaflor
presents no new evidence establishing that he is actually
innocent of his crimes, or that it is 'more likely than
not that no reasonable juror viewing the record as a whole
would lack reasonable doubt of his guilt.'"
Id. at *8.
sought reconsideration of the Federal District Court's
ruling, alleging extraordinary circumstances and actual
innocence. The Federal District Court denied the motion for
reconsideration. Penaflor v. Thomas, Civil. No.
12-00050 LEK-BMK, 2012 WL 2685096 (D. Hawai'i July 6,
appears to have filed, pro se, a civil rights complaint
against Judge Mossman, Priest, and Griswold in the Circuit
Court on December 11, 2013. The Circuit Court apparently
struck the civil rights complaint for lack of jurisdiction
because it found that Penaflor's claims were based on
federal civil rights statutes.
March 25, 2014, Penaflor, pro se, filed his Civil Tort
Complaint at issue in this appeal against Judge Mossman,
Priest, Griswold, and the County (collectively, the
"Defendants") Penaflor's Civil Tort Complaint
alleged a number of claims against the Defendants, including
malicious prosecution, false imprisonment, and ineffective
assistance of counsel. The crux of Penaflor's Civil Tort
Complaint was that as the result of the Defendants' acts
and omissions, Penaflor was wrongfully convicted and
imprisoned. In his prayer for relief, Penaflor requested that
a declaratory judgment be issued stating that the
Defendants' alleged acts and omissions violated his
rights; that an evidentiary hearing be granted "to
substantiate [his] claims"; that he be released from
custody upon the finding that he was falsely convicted and
imprisoned; and that he be awarded compensatory and punitive
damages against the Defendants.
Mossman filed a motion to dismiss the Civil Tort Complaint,
arguing that Penaflor failed to state a claim for relief
against Judge Mossman, and that even if Penaflor stated a
claim, Judge Mossman was protected by absolute judicial
immunity. Griswold filed a motion to dismiss Penaflor's
petition for declaratory judgment, a motion to declare
Penaflor a vexatious litigant under HRS Chapter 634J, and a
motion to dismiss the Civil Tort Complaint. Priest and the
County joined in Griswold's motion to dismiss the
petition for declaratory judgment and Griswold's motion
to declare Penaflor a vexatious litigant. In their joinder in
Griswold's vexatious litigant motion, Priest and the
County also requested that the Circuit Court "dismiss
all the parties." After holding a hearing on these
motions, the Circuit Court granted the motions and issued
corresponding orders, including an order declaring Penaflor
to be a vexatious litigant. The Circuit Court subsequently
entered a Judgment on August 19, 2015, which we construed as
dismissing Penaflor's entire Civil Tort Complaint with
argues that the Circuit Court erred by dismissing the Civil
Tort Complaint. As explained below, we conclude that the