United States District Court, D. Hawaii
SEAN P. DePAEPE, #A6017809 Petitioner,
STATE OF HAWAI‘I, Respondent.
ORDER TO SHOW CAUSE AND DISMISSING PETITION WITH
LEAVE TO AMEND
A. OTAKE UNITED STATES DISTRICT JUDGE.
the court is pro se Petitioner Sean P. DePaepe's Petition
under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody. ECF No. 1. The Court has reviewed
the Petition pursuant to Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts
(“Habeas Rule[s]”). Because the Petition fails to
(1) name a proper respondent, and (2) show that DePaepe's
claims are timely, fully exhausted, and based on federal law,
it appears that DePaepe “is not entitled to relief in
the district court.” Habeas Rule 4. The Petition is
DISMISSED with leave to amend to allow DePaepe to cure its
deficiencies and show cause why this action should not be
challenges his conviction for Operating a Vehicle after
License and Privilege Have Been Suspended or Revoked for
Operating a Vehicle under the Influence of an Intoxicant, in
violation of Hawai‘i Revised Statutes
(“HRS”) § 291E-62(a), to which he pled
guilty on March 14, 2018. The Circuit Court of the Second
Circuit, State of Hawai‘i (“circuit court”)
sentenced DePaepe to a one-year term of incarceration and
9, 2018, DePaepe filed a Motion to Set Aside Judgment, which
the circuit court denied on May 11, 2018. Pursuant to the
Hawai‘i Rules of Appellate Procedure
(“HRAP”), DePaepe had thirty days within which to
appeal this decision, that is, until June 11, 2018. See HRAP
August 5, 2019, DePaepe filed a notice of appeal of his
criminal conviction, docketed as CAAP-19-0000553. On
September 20, 2019, the Deputy Prosecuting Attorney, County
of Maui, filed a Statement Contesting Jurisdiction. On
November 4, 2019, the Hawai‘i Supreme Court Office of
the Chief Clerk notified DePaepe that the time for filing his
Statement of Jurisdiction and Opening Brief had expired. The
Clerk informed DePaepe that the matter would be called to the
attention of the court for action on November 14, 2019, and
told him that his appeal may be subject to dismissal pursuant
to HRAP 12.1(e) and 30. DePaepe's appeal remains pending
as of December 27, 2019.
signed the Petition on October 4, 2019, and the Court
received it on October 21, 2019. DePaepe asserts that: (1)
his alleged constitutional right to operate a vehicle for his
personal use was violated (Ground One); (2) he was on Oahu
when the ticket was written, thus, could not have violated
HRS section 291E-62(a) in Maui (Ground Two); (3) his plea and
sentence are unlawful and his attorney was “not acting
on [his] behalf” (Ground Three); and (4) HRS section
291E-62(a) is unconstitutional (Ground Four). Pet., ECF No. 1
PETITION IS DISMISSED
are several problems with the Petition that must be cured
before the Court can order it served on Respondent. First, a
petitioner seeking a writ of habeas corpus must name the
state officer having custody of him as the respondent to the
petition. See Habeas Rule 2(a); Ortiz Sandoval v.
Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v.
Cal. Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
The correct respondent is normally the warden of the facility
in which the petitioner is incarcerated, or the chief officer
in charge of state penal institutions. See Brittingham v.
United States, 982 F.2d 378, 379 (9th Cir. 1992). If
DePaepe elects to proceed with this action, he is DIRECTED to
file an amended petition naming the state official with the
ability to release him from custody.
DePaepe's appeal in CAAP-19-0000553 remains pending as of
the date of this Order. Before a state prisoner may challenge
his conviction or sentence in federal court he must fully
exhaust state judicial remedies, either on direct appeal or
through collateral proceedings, by presenting the highest
state court available with a fair opportunity to rule on the
merits of each and every issue sought to be raised in federal
court. See 28 U.S.C. § 2254(b)-(c); Granberry v.
Greer, 481 U.S. 129, 134 (1987); Rose v. Lundy,
455 U.S. 509 (1982); McNeeley v. Arave, 842 F.2d
230, 231 (9th Cir. 1988). If state remedies have not been
exhausted, the district court must dismiss the petition. See
Rose, 455 U.S. at 510; Guizar v. Estelle, 843 F.2d
371, 372 (9th Cir. 1988). DePaepe must clarify the procedural
posture of his appeal in CAAP-19-0000553, or explain why
exhaustion should be waived.
a one-year statute of limitation applies to applications for
writs of habeas corpus, subject to certain tolling
conditions. See 28 U.S.C. § 2244(d)(1);id. §
2244(d)(2) (tolling the statute while a “properly
filed” State post-conviction petition is pending).
DePaepe's conviction became final after June 11, 2018,
thirty days after the circuit court denied his Motion to Set
Aside Judgment when the time for appeal expired. He then had
until on or before June 11, 2019 to file a timely federal
habeas petition. See 28 U.S.C. § 2244(d)(1)(A). The
Petition appears time-barred on its face and is subject to
dismissal absent equitable tolling.It is DePaepe's burden to
demonstrate that his claims are not time-barred, however, and
the Petition does not suggest any bases for tolling.
DePaepe fails to clearly allege “that he is in custody
in violation of the Constitution or laws or treaties of the
United States, ” because he fails to allege any facts
or specific Constitutional or statutory provisions in support
of his claims. See 28 U.S.C. § 2254(a). Habeas Rule 2
requires a federal habeas petition to state the facts that
support each ground for relief. See Habeas Rule 2(c)(2); see
also Mayle v. Felix, 545 U.S. 644, 654-55 (2005)
(stating Habeas Rule 2(c) imposes a “more
demanding” pleading standard than the Federal Rules of
Civil Procedure require for ordinary civil cases). A federal
habeas petitioner “is expected to state facts that
point to a real possibility of constitutional error.”
Wacht v. Cardwell, 604 F.2d 1245, 1247 (9th Cir.
1979) (internal quotation marks and citation omitted)
(emphasis added). When, as here, a habeas claim makes only
conclusory allegations, the petitioner is not entitled to
federal habeas relief. See James v. Borg, 24 F.3d
20, 26 (9th Cir. 1994) (“Conclusory allegations . . .
[un]supported by a statement of specific facts do not warrant
habeas relief.” (citation omitted)); Jones v.
Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995) (same). If
DePaepe elects to proceed with this action by filing an
amended pleading, he must clarify the federal bases of his
claims and allege facts in support.
because mittimus entered on March 14, 2018, and DePaepe was
only sentenced to a one-year term of incarceration, it
appears that he is no longer in custody for the sentence he
challenges. See 28 U.S.C. § 2254 (stating that “a
district court shall entertain an application for a writ of
habeas corpus . . . only on the ground that he is in custody
in violation of the Constitution or laws or treaties of the
United States” (emphasis added)). If true, it appears
that his challenge of this conviction was moot when the
Petition was filed. See Maleng v. Cook, ...