United States District Court, D. Hawaii
MICKEY A. MADDOX, #A0723747, Petitioner,
TODD THOMAS, Respondent.
AMENDED ORDER DISMISSING PETITION FOR WRIT OF HABEAS
CORPUS; DENYING CERTIFICATE OF APPEALABILITY; AND DENYING
MOTION FOR STAY AND ABEYANCE
Derrick K. Watson United States District Judge.
the court is Petitioner 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 State of Hawaii, Circuit Court of the Second
Circuit's (“circuit court”) judgment in
State v. Maddox, Cr. No. 07-1-0139 (Haw. 2d Cir.
Jan. 10, 2010). That judgment resulted in the dismissal of
the criminal proceedings against Maddox 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, failure to exhaust, and as time-barred.
Maddox filed a Motion for Stay and Abeyance on November 8,
2018, which the court also construes 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
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, 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 a June 16, 2006 incident at the Maui Community
Correctional Center. ECF No. 20-1 [Resp't Ex. A]. Maddox
entered a not guilty plea on July 31, 2007, and trial was set
for October 22, 2007. Id. [Ex. B].
December 23, 2008, after several continuances of trial and
changes of counsel, the circuit court appointed Cary Virtue,
Esq. to represent Maddox. 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 because
of 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)]. According to 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 https://jimspss1.courts.state.hi.us.
(2PC071000139) (last visited Jan. 14, 2019).
Federal Court Proceedings
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 09-1-0284, and
raised seven grounds for relief. See Pet., ECF No. 1.
11, 2018, the court dismissed the original Petition and
directed Maddox to file a separate petition for each judgment
that he challenged. See May 11, 2018 Order, ECF No. 9. The
court notified Maddox that certain claims appeared (1)
unexhausted, as he was awaiting an evidentiary hearing before
the circuit court that had the possibility of granting him
the relief he sought; (2) time- barred, ...