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Penaflor v. Mossman

Intermediate Court of Appeals of Hawaii

November 30, 2017

CRANDALL PENAFLOR, Plaintiff-Appellant,
v.
BOYD P. MOSSMAN, RICHARD A. PRIEST, JR., THOMAS P. GRISWOLD, CITY & COUNTY OF MAUI, A MUNICIPAL CORPORATION, ARE SUED IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, Defendants-Appellees.

         APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CIVIL NO. 14-1-0187(2))

          Crandall Penaflor Plaintiff-Appellant pro se.

          Patricia Ohara Robyn B. Chun Deputy Attorneys General for Defendant-Appellee Boyd P. Mossman.

          David A. Sereno for Defendant-Appellee Thomas P. Griswold.

          Thomas W. Kolbe Caleb P. Rowe Deputies Corporation Counsel for Defendants-Appellees Richard A. Priest, Jr. and County of Maui.

          NAKAMURA, CHIEF JUDGE, AND FUJISE AND LEONARD, JJ.

          OPINION

          NAKAMURA, CHIEF JUDGE

         Plaintiff-Appellant 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.[1]

         In 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)[2] 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 litigation.

         On 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.

         This 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.

         With 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 order.

         I.

         A.

         On May 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.

         The 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.

         Penaflor 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.).

         B.

         On 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.

         On 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) .

         On 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 decision.

         In 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) .

         On 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) .[3] 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.

         Penaflor 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, 2012) .

         c.

         Penaflor appears to have filed, pro se, a civil rights complaint against Judge Mossman, Priest, and Griswold in the Circuit Court on December 11, 2013.[4] 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.[5]

         D.

         On 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.

         Judge 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.[6] The Circuit Court subsequently entered a Judgment on August 19, 2015, which we construed as dismissing Penaflor's entire Civil Tort Complaint with prejudice.[7]

         DISCUSSION

         Penaflor argues that the Circuit Court erred by dismissing the Civil Tort Complaint. As explained below, we conclude that the Circuit ...


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