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Maddox v. Thomas

United States District Court, D. Hawaii

January 22, 2019

MICKEY A. MADDOX, #A0723747, Petitioner,
v.
TODD THOMAS, Respondent.

          ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY; DENYING MOTION FOR STAY AND ABEYANCE

          DERRICK K. WATSON UNITED STATES DISTRICT JUDGE

         Before the court is Petitioner Mickey A. Maddox's Amended Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Amended Petition). ECF No. 14. Maddox challenges the Circuit Court of the Second Circuit (“circuit court”), State of Hawaii's, judgment in State v. Maddox, Cr. No. 07-1-0139 (Haw. 2d Cir. Jan. 10, 2010), dismissing the proceedings without prejudice for a speedy trial violation under Hawaii Rules of Penal Procedure 48 (HRPP).

         Respondent filed a Preliminary Answer to the Amended Petition on October 1, 2018. ECF No. 20. Respondent argues the Amended Petition must be dismissed for lack of jurisdiction and exhaustion, and as time-barred. Maddox filed a Motion for Stay and Abeyance on November 8, 2018, construed also as his Reply. ECF No. 27. Maddox disputes Respondent's characterization of his claims, although he concedes that his three main issues are unexhausted. He requests a stay and abeyance until the Hawaii courts have resolved his pending state post-conviction petition brought pursuant to HRPP 40, in Maddox v. State, S.P.P. No. 13-1-0004 (Haw. 2d Cir.) (Rule 40 Petition; 2PR131000004).

         Because Maddox is not in custody pursuant to the judgment in Cr. No. 07-1-0139, however, which is a requirement for relief under 28 U.S.C. § 2254, the court lacks jurisdiction to consider his challenge to that judgment.[1] Moreover, Maddox's claims herein, insofar as they relate to Cr. No. 07-1-0139, are time-barred pursuant to 28 U.S.C. § 2244(d)(1). The Amended Petition is DISMISSED, the Motion for Stay and Abeyance is DENIED, and any request for a certificate of appealability is DENIED.

         I. BACKGROUND

         A. State Court Proceedings

         On March 16, 2007, Maddox was indicted in Cr. No. 07-1-0139 for attempted escape in the second degree (Count One) and promoting prison contraband in the first degree (Count Two), regarding an incident that occurred on June 16, 2006, at the Maui Community Correctional Center. ECF No. 20-1 [Resp't Ex. A]. Maddox entered a not guilty plea on July 31 and trial was set for October 22, 2007. Id. [Ex. B].

         On December 23, 2008, after several changes of counsel and continuances of trial, the circuit court appointed Cary Virtue, Esq., to represent Maddox in Cr. No. 07-1-0139. Id. [Exs. C, D. E].

         On May 15, 2009, the circuit court orally granted Maddox's motion to dismiss the indictment in Cr. No. 07-1-0139, [2] for the State's failure to timely commence trial. Id. [Ex. G]. The circuit court dismissed without prejudice, however, continued bail, and set a deadline of June 9, 2009, for the State to refile charges in a new criminal proceeding or the matter would be dismissed with prejudice. Id. [Ex. O]. Maddox orally moved to appeal at the hearing and also asked Virtue to file an appeal, but Virtue allegedly said, “he could not represent [Maddox] on appeal . . ., nor could he represent [Maddox] in any manner since the case had been dismissed and his representation terminated at that time.” Id., PageID #604 [Ex. N].

         On May 29, 2009, the State indicted Maddox in State v. Maddox, Cr. No. 09-1-0284 (Haw. 2d Cir.) (filed June 1, 2009), on the same charges that were dismissed in Cr. 07-1-0139. See Id. [Ex. I]. Maddox, proceeding pro se, filed a written, “second” notice of appeal in Cr. No. 07-1-0139 on this date, and two motions for appointment of counsel, requesting new counsel and appellate counsel to assist on his appeal in Cr. No. 07-1-0139.[3] Id.

         On June 9, 2009, Maddox, filed a “third” pro se notice of appeal in Cr. No. 07-1-0139. Id. [Ex. L].

         On August 25, 2009, the Intermediate Court of Appeals (“ICA”) dismissed Maddox's “third” notice of appeal for lack of jurisdiction. The ICA held that, because the circuit court never issued a written order dismissing the charges without prejudice, and no sentence was imposed, there was no final appealable order or judgment from which to appeal.[4] Id. [Ex. M; Appeal No. 29886].

         On January 7, 2010, the circuit court issued a written Findings of Fact and Conclusions of Law (1/7/2010 FOF/COL) dismissing Cr. No. 07-1-0139 without prejudice for a speedy trial violation pursuant to HRPP 48.[5] Id. [Ex. J]. Maddox states that he never received notice of this order, and therefore, never appealed.

         On June 28, 2010, Maddox pled no contest in Cr. No. 09-1-0284 pursuant to a plea agreement.[6] See Id. [Ex. O; FOF/COL and Order and Judgment Denying Without Prejudice Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner From Custody, As Amended, Supplemented, and Corrected (8/21/2014 FOF/COL)]. Pursuant to the terms of the plea agreement, Maddox agreed “to withdraw any and all pending motions and/or appeals in said cases, ” in exchange for concurrent terms of probation in Cr. Nos. 09-1-0284 and 09-1-0675, credit for time served in Cr. No. 07-1-0139 and Cr. No. 09-1-0284, and the State's agreement not to request repeat offender mandatory minimum or extended term sentences. Id., ¶ 39. Maddox was placed on probation on August 27, 2010. Id., ¶ 40.

         On June 13, 2011, Maddox was arrested on a probation violation warrant and posted bond. Id., ¶ 43. Maddox and the State jointly stipulated to continue the probation revocation hearing until February 16, 2012. Maddox, however, failed to appear at that hearing and his bail was forfeited and a warrant of arrest was issued. Maddox was arrested in California in May and taken into custody in Hawaii on July 9, 2012. Id.

         On April 25, 2013, Maddox was re-sentenced in Cr. No. 09-1-0284 pursuant to a new plea agreement, [7] to concurrent terms of imprisonment of five years for attempted escape in the second degree (Count One) and ten years for promoting prison contraband in the first degree (Count Two). Id. He is currently incarcerated on these sentences.

         On April 26, 2013, Maddox, proceeding pro se, filed his Rule 40 Petition in S.P.P. No. 13-1-0004, in which he challenged the judgments in Cr. No. 07-1-0139 and Cr. No. 09-1-0284. Id. [Ex. N]. Maddox raised numerous grounds for relief in the Rule 40 Petition, but relevant here, he argued that: (1) if Virtue had delayed filing Maddox's motion to dismiss for a violation of his speedy trial rights in Cr. No. 07-1-039, as Maddox had instructed, the statute of limitation would have run on the charges and they would have been dismissed with prejudice;[8] and (2) if Virtue had pursued an appeal, as Maddox requested, Maddox would have won on appeal and could not have been convicted in Cr. No. 09-1-0284. See id., PageID #603-604 [Ground G].

         On August 21, 2014, the circuit court denied Maddox's Rule 40 Petition without prejudice. Id. [Ex. O, 8/21/2014 FOF/COL]. Maddox appealed, and on March 31, 2016, the ICA affirmed the circuit court. Id. [Ex. Q, CAAP-14-0001108].

         On December 14, 2017, the Hawaii Supreme Court found that Maddox stated colorable claims regarding his inability to appeal in Cr. No. 07-1-0139. Id. [Ex. T, SCWC-14-0001108]; Maddox v. State, 141 Haw. 196, 208 (Haw. 2017). It vacated the ICA's Judgment on Appeal and the circuit court's 8/21/2014 FOF/COL and remanded to the circuit court with instructions to conduct an evidentiary hearing regarding Maddox's claims that Virtue (1) was ineffective for failing to file an appeal; and (2) had abandoned Maddox during a critical stage of the case.[9] Id.; Maddox, 141 Haw. at 207-08. The Hawaii Supreme Court stated that, if Maddox's allegations regarding Virtue were true, Maddox would be entitled to proceed with an appeal of the order dismissing Cr. No. 07-1-0139 without prejudice. Id. The Hawaii Supreme Court rejected all other claims in the Rule 40 Petition as either ruled upon, waived, or without merit. See id., PageID #702; Maddox, 141 Haw. at 208, n.34 (discussing Maddox's thirteen remaining claims). On January 16, 2018, the Hawaii Supreme Court entered Judgment on Appeal in Cr. Nos. 07-1-0139 and 09-1-0284. Maddox's Rule 40 Petition is awaiting disposition in the circuit court. See https://jimspss1.courts.state.hi.us. (2PC071000139) (last visited Jan. 14, 2019).

         B. Federal Proceedings

         On April 9, 2018, Maddox filed the original Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (original Petition), in which he challenged the respective judgments in Cr. Nos. 07-1-0139 and ...


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