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Thompson v. Attorney General of State

United States District Court, D. Hawaii

July 17, 2019

JAMES THOMPSON, #A0131160, Petitioner,
v.
ATTORNEY GENERAL OF THE STATE OF HAWAII, Respondent,

          ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF APPEALABILITY

          J. MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.

         Before the court is Petitioner James Thompson's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody. ECF No. 1. Thompson challenges his judgment of conviction and sentence in State v. Thompson, Cr. No. 97-1-02401 (Haw. 1st Cir. 2017), entered in the Circuit Court of the First Circuit (“circuit court”), State of Hawaii. See i d.; see also https://jimspss1.courts.state.hi.us (1PC97002401) (7/1/2019) (last visited July 10, 2019).

         Because it plainly appears from the face of the Petition that Thompson's claims are unexhausted, the Petition and this action are DISMISSED without prejudice pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Any request for a certificate of appealability is DENIED.

         I. BACKGROUND [1]

         Thompson challenges the new judgment of conviction and sentence entered in Cr. No. 97-1-02401 on April 28, 2017, following his successful federal challenge to his original sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000). See Thompson v. Thomas, Civ. No. 08-00218 SOM-KSC (D. Haw. Aug. 29, 2012) (Order Granting in Part Petitioner's 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus by a Person in State Custody). Thompson was originally sentenced to nine life terms with the possibility of parole, two twenty-year sentences, eight ten-year sentences, each to run concurrently. See State v. Thompson, CAAP-17-0000427 (Haw. Ct. App. Sept. 26, 2018) (mem. op.). The circuit court resentenced Thompson to: (1) twenty years for Counts 1-4, 6, 14, and 19; (2) twenty years for Counts 7 and 8; (3) five years for Counts 9-11, 15-17, 20 and 21; (4) ten years for Counts 12 and 22; and (5) one year for Count 13. Certain of these sentences were ordered to run concurrently and others to run consecutively, resulting in a total term of sixty-one years imprisonment. See i d., at 4-5.

         Thompson appealed the circuit court's order of conviction upon resentencing, arguing that the imposition of consecutive terms resulted in his receiving a more severe sentence than his original conviction, in violation of state law.[2] See Pet., ECF No. 1, at PageID #5. State court records show that the Hawaii Intermediate Court of Appeals (“ICA”) affirmed the circuit court's judgment on resentencing on September 26, 2018. See CAAP-17-0000427:

         https://jimspss1.courts.state.hi.us. On January 31, 2019, the Hawaii Supreme Court accepted Thompson's application for writ of certiorari. See i d., No. SCWC-17-0000427. On April 24, 2019, oral argument was held, but no opinion has been entered and the matter remains pending on direct appeal.

         On May 14, 2019, Thompson filed in the state circuit court a Petition to Vacate, Set Aside, or Correct Judgment, or to Release Petitioner From Custody pursuant to Hawaii Rules of Penal Procedure (“HRPP”) 40 (“Rule 40 Petition”). See Pet., ECF No. 1, at PageID #4; 1PR191000009: http://hoohiki.courts.hawaii. gov/. Thompson argued five bases for relief: (1) “Brady violation;” (2) “Prosecutorial misconduct First Trial;” (3) “Judicial misconduct First trial;” (4) “Ineffective assistance of trial counsel, last trial;” and (5) “Ineffective assistance of appeal attorney.” Pet., ECF No. 1, at PageID #4. Thompson states that this post-conviction petition remains pending, although state court records show that the circuit court dismissed the Rule 40 Petition on June 17, 2019.[3] See 1PR191000009. Thompson has not yet filed a notice of appeal of this dismissal.

         In the present Petition, Thompson raises six grounds for relief: (1) “Brady violation/Due process violation;” (2) “Prosecutorial misconduct of my first Trial;” (3) “Judicial misconduct of my first trial;” (4) “Prosecutorial Misconduct of my Fourth Trial;”[4] (5) “Ineffective assistance of trial counsel in my last trial;” and (6) “Ineffective assistance of appeal attorney.” Pet., ECF No. 1, at PageID #5-#20.

         II. LEGAL STANDARDS

         The court must screen all actions brought by prisoners who seek any form of relief from a governmental entity or officer or employee of a governmental entity, including habeas relief. 28 U.S.C. § 1915A(a). Rule 4 of the Rules Governing Section 2254 Cases (Habeas Rule 4) requires the court to dismiss a habeas petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.”

         Under 28 U.S.C. § 2254(b), habeas relief may not be granted unless a petitioner has exhausted the remedies available in state court.[5] See Rose v. Lundy, 455 U.S. 509, 510 (1982); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Proper exhaustion requires that the petitioner's contentions be fairly presented to the state courts, Ybarra v. McDani el, 656 F.3d 984, 991 (9th Cir. 2011), and disposed of on the merits by the highest state court with authority to review them, Greene v. Lambert, 288 F.3d 1081, 1086 (9th Cir. 2002). As a matter of comity, a federal court will not entertain a habeas petition unless the petitioner has exhausted the available state judicial remedies on every ground presented. See Rose, 455 U.S. at 518.

         A federal court may raise the failure-to-exhaust issue sua sponte and summarily dismiss on that ground. See Granberry v. Greer, 481 U.S. 129, 134-35 (1987); Stone v. City & Cty. of San Francisco, 968 F.2d 850, 856 (9th Cir. 1992). A petitioner has the burden of demonstrating that he has exhausted available state remedies. See, e.g., Williams v. Craven, 460 F.2d 1253, 1254 (9th Cir. 1972) (per curiam); Rolli ns v. Superior Court, 706 F.Supp.2d 1008, 1011 (C.D. Cal. 2010). A dismissal solely for failure to exhaust is not a dismissal on the merits, Howard v. Lewi s, 905 F.2d 1318, 1322-23 (9th Cir. 1990), and does not bar a petitioner from returning to federal court after exhaustion of state remedies.

         III. ...


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