NOT
FOR PUBLICATION
NO. 25461
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I
EUGENE JAMES HUTCH, Petitioner-Appellant, v.
STATE OF HAWAI`I, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(S.P.P. NO. 02-1-0025)
MEMORANDUM OPINION
(By: Burns, C.J., Watanabe and Foley, JJ.)
Petitioner-Appellant Eugene James Hutch (Hutch) appeals from the October
18, 2002 First Circuit Court judgment denying his Hawai`i Rules of Penal
Procedure (HRPP) Rule 40 petition for post-conviction relief.
(1) We affirm.
BACKGROUND
On April 10, 2002,
Hutch filed a "Petition to Vacate, Set Aside, or Correct Judgment or to
Release Petitioner from Custody" (April 10, 2002 Rule 40 Petition) regarding
the Judgment entered on November 29, 1985 in First Circuit Court, Cr. No.
60333, convicting him of Terroristic Threatening in the First Degree. In
response to the question in the petition, "State concisely
every ground on which you claim that you are being held unlawfully[,]"
Hutch stated, in relevant part, as follows:
A.
Ground one: Petitioner is being punished for helping inmates . . . .
.
. . .
B.
Ground two: Petitioner has been denied proper medical care for filing lawsuits.
.
. . .
C.
Ground three: Petitioner has had his and other prisoners [sic] legal documents
taken.
.
. . .
D.
Ground four: The prison staff are allowed to enforce rules repealed already
. . . .
.
. . .
[E.] Ground
Five: Petitioner has been punished and continues to get punished
for helping fellow prisoners try and gain adequate effective and meaningful
access to the various courts.
Supporting
Facts: Petitioner is one of the State of Hawaii's jailhouse lawyers
and the Prison staff continues to punish the Petitioner for that pursuant
to a Prison Rule HAR [Hawaii Administrative Rules] § 17-202-1(b) that
has been repealed since April 15, 2000 . . . .
. . . .
[F.] Ground
Six: The State of Hawaii Prison Staff and court system has failed
to following [sic] the authority set out in Gluth
v. Kangas, 951 F.2d 1504, at 1508 [] (9th cir. 1991), and has hindered
all prisoners adequate, effective, and meaningful access to all the courts.
. . . .
[G.] Ground
Seven: Petitioner's Parole has been denied through retaliation of
Petitioner filing petitions, civil matters, for other inmates.
On October 18, 2002, the circuit court filed its "Findings of Fact,
Conclusions of Law and Order Denying Petition to Vacate, Set Aside, or
Correct Judgment or to Release Petitioner from Custody," stating,
in relevant part:
FINDINGS
OF FACT
. . . .
Procedural
Background
. . . .
3.
On May 10, 1984, the Complaint in State
v. Hutch was filed charging [Hutch] with Terroristic Threatening
in the First Degree.
4.
[Hutch] was convicted as charged by a Jury.
5.
[Hutch] was represented by counsel before and during the trial.
6.
On November 29, 1984 [Hutch] was sentenced to an open FIVE (5) year term.
. . .
7.
On January 30, 1985 [Hutch] filed a Notice of Appeal.
8.
On April 5, 1988 [Hutch's] conviction was affirmed via Memorandum Opinion
filed under Supreme Court No. 10459. . . .
9.
On April 20, 1989 [Hutch], having served the maximum sentence, was discharged.
. . .
Defendant/Petitioner's
other Criminal Matters and other Post-Conviction Proceedings
10.
[Hutch] has a total of seven (7) criminal cases:
Cr.
No. 60333
Terroristic Threatening 1
Cr. No. 89-0395
Terroristic Threatening 2; Assault 3
Cr. No. 90-0277
Theft 2
Cr. No. 90-1711
Theft 2
Cr. No. 94-2819
Promoting Dangerous Drug 3; Unlawful Use of Drug Paraphernalia
Cr. No. 94-1076
Promoting Dangerous Drug 3; Unlawful Use of Drug Paraphernalia
Cr. No. 96-2224
Robbery 2
11.
[Hutch] has filed a total of twenty-five (25) Post Conviction (Rule 40)
Petitions. . . .
CONCLUSIONS
OF LAW
The
Defendant/Petitioner's Judgment has been satisfied
1.
Hawaii Rules of Penal Procedure, Rule 40(a)(2) states that:
From
Custody. Any person may seek relief under the procedure set forth in
this rule from
custody based upon a judgment of conviction, on the following grounds:
[i]
that the sentence was fully served;
(ii) that parole or probation was unlawfully
revoked; or
(iii) any other ground making the custody,
though not the judgment, illegal . . . .
2.
[Hutch] has been discharged from custody for the conviction in Cr. No.
60333. Consequently, he is not seeking relief "from custody based upon
a judgment of conviction."
Issues
Previously Ruled Upon or Waived
3.
Hawaii Rules of Penal Procedure, Rule 40(a)(3) states that:
Rule 40
proceedings shall not be available and relief thereunder shall not be granted where
the issues sought to be raised have been previously ruled upon or were
waived. An issue is waived if the petitioner knowingly and understandingly
failed to raise it and it could have been raised before the trial, at the
trial, on appeal, in a habeas corpus proceeding or any other proceeding
actually conducted, or in a prior proceeding actually initiated under this
rule, and the petitioner is unable to prove the existence of extraordinary
circumstances to justify the petitioner's failure to raise the issue. There
is a rebuttable presumption that a failure to appeal a ruling or to raise
an issue is a knowing and understanding failure. . . .
Hawaii
Rules of Penal Procedure, Rule 40(g)(2) states that:
The court
may dismiss a petition at any time upon finding the petition is patently
frivolous, the issues have been previously raised and ruled upon, or the
issues were waived. The court may deny a petition upon determining the
allegations and arguments have no merit.
4.
[Hutch] now raises issues which have been previously raised and ruled upon
or the issues were waived. Therefore, relief under this Rule 40 petition
is inappropriate.
5.
For example, [Hutch] has appealed his conviction in Cr. No. 60333. In addition,
[Hutch] has now filed a total of four
(4) Rule 40 Petitions which involved Cr. No. 60333. See,
SPP 86-0022, SPP 93-0055, SPP 01-1-0029 and this Petition.
6.
. . . [T]he issues raised by [Hutch] are patently frivolous and lack merit.
[Hutch's] claims can be summarized as complaints about the way he is treated
while incarcerated. His allegations regarding assisting other inmates can
be summarized as [Hutch] complaining that he is being asked to stop violating
the law. See, HRS [Hawaii
Revised Statutes] §§605-14, 605-15.2 and 605-17.
(2) [Hutch's] allegations about denial of
medical care are also without merit. [Hutch's] own exhibits to the Petition
demonstrate that his medical needs are being addressed. Furthermore, nothing
in his Petition demonstrates that he has been denied access to the courts.
In fact, his many court filings indicate the contrary. Also, nothing in
his Petition demonstrates that his parole (though based on another conviction)
was unlawfully denied. Similarly, nothing in his Petition demonstrates
that his custody is illegal.
Based
upon all the above, the Petition to Vacate, Set Aside, or correct Judgment
or to release Petitioner From Custody is hereby DENIED without a hearing.
(Footnote added; footnote
omitted; emphasis in original.)
On November 7, 2002,
Hutch filed a notice of appeal. The appeal was assigned to this court on
April 30, 2004.
POINT ON APPEAL
Upon review of Hutch's
opening brief, we construe his sole point on appeal to be that the circuit
court erred by denying his April 10, 2002 Rule 40 Petition without an evidentiary
hearing.
STANDARD
OF REVIEW
Regarding the denial
of a HRPP Rule 40 petition without an evidentiary hearing, HRPP Rule 40(f)
(2002) provides in relevant part:
Hearings. If a petition alleges
facts that if proven would entitle the petitioner to relief, the court
shall grant a hearing which may extend only to the issues raised in the
petition or answer. However, the court may deny a hearing if the petitioner's
claim is patently frivolous and is without trace of support either in the
record or from other evidence submitted by the petitioner. The court may
also deny a hearing on a specific question of fact when a full and fair
evidentiary hearing upon that question was held during the course of the
proceedings which led to the judgment or custody which is the subject of
the petition or at any later proceeding.
In Barnett
v. State, 91 Hawai`i 20, 979 P.2d 1046 (1999), the Hawai`i Supreme
Court stated:
As
a general rule, a hearing should be held on a Rule 40 petition for post-conviction
relief where the petition states a colorable claim. To establish a colorable
claim, the allegations of the petition must show that if taken as true
the facts alleged would change the verdict, however, a petitioner's conclusions
need not be regarded as true. Where examination of the record of the trial
court proceedings indicates that the petitioner's allegations show no colorable
claim, it is not error to deny the petition without a hearing. The question
on appeal of a denial of a Rule 40 petition without a hearing is whether
the trial record indicates that Petitioner's application for relief made
such a showing of a colorable claim as to require a hearing before the
lower court.
State
v. Allen, 7 Haw. App. 89, 92-93, 744 P.2d 789, 792-93 (1987) (emphasis
added).
In this regard, the appellate court steps
into the trial court's position, reviews the same trial record, and redecides
the issue. Because the appellate court's determination of "whether the
trial record indicates that Petitioner's application for relief made such
a showing of a colorable claim as to require a hearing before the lower
court" is a question of law, the trial court's decision is reviewed de
novo. SeeUnited
States v. Burrows, 872 F.2d 915 (9th Cir. 1989) (denial of a post-conviction
motion based on ineffective assistance of counsel without conducting an
evidentiary hearing is reviewed de novo for a determination of whether
the files and records of the case conclusively show that petitioner is
entitled to no relief). Therefore, we hold that the issue whether the trial
court erred in denying a Rule 40 petition without a hearing based on no
showing of a colorable claim is reviewed de novo; thus, the right/wrong
standard of review is applicable.
Dan
v. State, 76 Hawai`i 423, 427, 879 P.2d 528, 532 (1994).
Barnett,
91 Hawai`i 20, 26, 979 P.2d 1046, 1052 (1999) (brackets and ellipsis omitted;
emphasis in original).
DISCUSSION
The circuit court
based its denial of the April 10, 2002 Rule 40 Petition on three grounds:
(1) in the relevant criminal case, First Circuit Court Cr. No. 60333, Hutch
had already been discharged from custody, (2) the April 10, 2002 Rule 40
Petition raised issues that had already been ruled upon or waived, and
(3) Hutch's claims were patently frivolous.
1. Hutch has already
been discharged from custody.
After Hutch served the maximum sentence for his conviction in Cr. No.
60333, the Hawaii Paroling Authority discharged Hutch from custody on April
20, 1989. In Cr. No. 60333, Hutch had no basis for seeking relief from
custody under HRPP Rule 40(a)(2). (3) Thus,
Hutch's Ground Seven is without merit.
Hawai`i Rules of Penal
Procedure Rule 40(a)(1) (2002) states, in relevant part:
FROM
JUDGMENT. At any time but not prior to final judgment, any person may seek
relief under the procedure set forth in this rule from the judgment of
conviction, on the following grounds:
(i)
that the judgment was obtained or sentence imposed in violation of the
constitution of the United States or of the State of Hawaii;
(ii)
that the court which rendered the judgment was without jurisdiction over
the person or the subject matter;
(iii)
that the sentence is illegal;
(iv)
that there is newly discovered evidence; or
(v)
any ground which is a basis for collateral attack on the judgment.
However, six of the seven grounds stated in the April 10, 2002 Rule
40 Petition pertain to how he is being treated while in prison. Hutch has
failed to demonstrate, and we are unable to discern, how any of his cited
grounds fall into any of the categories specified in HRPP Rule 40(a)(1).
2. Hutch raises issues that have
already been ruled upon or
waived.
Hawai`i Rules of Penal Procedure Rule 40(a)(3) (2002) states, in relevant
part:
INAPPLICABILITY.
Rule 40 proceedings shall not be available and relief thereunder shall
not be granted where the issues sought to be raised have been previously
ruled upon or were waived. An issue is waived if the petitioner knowingly
and understandingly failed to raise it and it could have been raised before
the trial, at the trial, on appeal, in a habeas corpus proceeding or any
other proceeding actually conducted, or in a prior proceeding actually
initiated under this rule, and the petitioner is unable to prove the existence
of extraordinary circumstances to justify the petitioner's failure to raise
the issue. There is a rebuttable presumption that a failure to appeal a
ruling or to raise an issue is a knowing and understanding failure.
As noted by the circuit court in its October 18, 2002 findings, Hutch
directly appealed his conviction in Cr. No. 60333. Further, he previously
filed four HRPP Rule 40 petitions involving Cr. No. 60333. In these prior
petitions, Hutch challenged his conviction by raising issues similar to
the ones he raises in the instant petition (e.g., enforcement of repealed
administrative rules and hindrance of his activities as a jail-house lawyer).
In appeal no. 24965 (SPP No. 01-1-0029), Hutch alleged that "(1) Hawai`i
Administrative Rules (HAR) § 17-202-1(b) denies him adequate legal
assistance; (2) stand-by counsel denied him adequate access to his preliminary
hearing transcripts (PHTs) during the pre-trial phase; and (3) prison staff
continue to deny him legal and other services needed to challenge his case."
The supreme court held that Hutch's claims were without merit. Therefore,
even if the claims asserted by Hutch in the instant petition were colorable,
HRPP Rule 40(a)(3) would preclude relief.
3. Hutch's claims are
patently frivolous.
Hawai`i Rules of Penal
Procedure Rule 40(g) (2002) states, in relevant part:
(2)
AGAINST THE PETITIONER. The court may dismiss a petition at any time upon
finding the petition is patently frivolous, the issues have been previously
raised and ruled upon, or the issues were waived. The court may deny a
petition upon determining the allegations and arguments have no merit.
The record on appeal is filled with a multitude of exhibits submitted
by Hutch, ostensibly to provide support for the allegations asserted in
his April 10, 2002 Rule 40 Petition. However, none of these exhibits provide
any support for Hutch's allegations that he is being punished for his actions,
that he is being denied proper medical care, that he is improperly being
denied a parole hearing, that he is the subject of an illegal conviction
and custody, and that he has been denied access to the courts.
CONCLUSION
Accordingly, the judgment
filed in the Circuit Court of the First Circuit on October 18, 2002 is
affirmed.
DATED: Honolulu,
Hawai`i, March 18, 2005.
On the briefs:
Eugene James Hutch
Pro Se Petitioner-Appellant.
Loren J. Thomas,
Deputy Prosecuting Attorney,
City and County of Honolulu,
for Respondent-Appellee.
1. The Honorable
Victoria S. Marks presided.
2. Hawaii Revised
Statutes (HRS) § 605-14 (2001) states, in relevant part:
Unauthorized
practice of law prohibited. It shall be unlawful for any person, firm,
association, or corporation to engage in or attempt to engage in or to
offer to engage in the practice of law, or to do or attempt to do or offer
to do any act constituting the practice of law, except and to the extent
that the person, firm, or association is licensed or authorized so to do
by an appropriate court, agency, or office or by a statute of the State
or of the United States. Nothing in sections 605-14 to 605-17 contained
shall be construed to prohibit the preparation or use by any party to a
transaction of any legal or business form or document used in the transaction.
HRS §
605-15.2 (1993) states, in relevant part:
Remedies.
Remedies for the violation of section 605-14 shall include injunctive
and declaratory relief; and other existing remedies. In addition, the attorney
general may maintain a criminal action against any person who violates
section 605-14, the penalties for which are set forth in section 605-17.
HRS §
605-17 (2001) states, in relevant part:
Penalties.
Any person violating sections 605-14 to 605-16 shall be guilty of a
misdemeanor.
3.
Hawai`i Rules of Penal Procedure (HRPP) Rule 40(a)(2) (2002) states as
follows:
FROM CUSTODY. Any person may seek relief
under the procedure set forth in this rule from custody based upon a judgment
of conviction, on the following grounds:
(i) that sentence was fully served;
(ii) that parole or probation was unlawfully revoked; or
(iii)
any other ground making the custody, though not the judgment, illegal.