United States District Court, D. Hawaii
ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF
MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.
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
(7/1/2019) (last visited July 10, 2019).
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.
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.
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
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
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.
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. See 1PR191000009. Thompson has
not yet filed a notice of appeal of this dismissal.
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;” (5) “Ineffective assistance of trial
counsel in my last trial;” and (6) “Ineffective
assistance of appeal attorney.” Pet., ECF No. 1, at
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.”
28 U.S.C. § 2254(b), habeas relief may not be granted
unless a petitioner has exhausted the remedies available in
state court. 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.
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