United States District Court, D. Hawaii
MICKEY A. MADDOX, #A0723747, Petitioner,
TODD THOMAS, Respondent.
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF APPEALABILITY; DENYING MOTION FOR STAY
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE
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).
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).
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. 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.
State Court Proceedings
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].
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].
15, 2009, the circuit court orally granted Maddox's
motion to dismiss the indictment in Cr. No. 07-1-0139,
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].
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.
9, 2009, Maddox, filed a “third” pro se notice of
appeal in Cr. No. 07-1-0139. Id. [Ex. L].
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. Id. [Ex. M; Appeal No. 29886].
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. Id. [Ex. J]. Maddox
states that he never received notice of this order, and
therefore, never appealed.
28, 2010, Maddox pled no contest in Cr. No. 09-1-0284
pursuant to a plea agreement. 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., ¶
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,
April 25, 2013, Maddox was re-sentenced in Cr. No. 09-1-0284
pursuant to a new plea agreement,  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.
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; 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].
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,
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. 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
(last visited Jan. 14, 2019).
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 ...