Eisermann v. Penarosa

• Decision Date: 28 January 1999
• Docket Number: Civil No. 98-00789 DAE.
• Citation: 33 F.Supp.2d 1269
• Parties: Wolfgang EISERMANN, Petitioner, v. Eric PENAROSA, et al., Respondents.
• Court: U.S. District Court — District of Hawaii

33 F.Supp.2d 1269

Wolfgang EISERMANN, Petitioner, v. Eric PENAROSA, et al., Respondents.

Civil No. 98-00789 DAE.

United States District Court, D. Hawaii.

January 28, 1999.

Wolfgang Eisermann, Appleton, MN, pro se.

Donn Fudo, Office of the Prosecuting Attorney, Honolulu, HI, for Respondents.

ORDER DISMISSING PETITION

DAVID ALAN EZRA, Chief District Judge.

On September 28, 1998, Petitioner WOLFGANG EISERMANN ("Petitioner"), presented to court a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Section 2254. On October 8, 1998, Petitioner was ordered to amend the petition to name the correct respondent, specifically, to name the warden of Petitioner's prison in Texas. On October 28, 1998, Petitioner submitted an Amended Petition naming State of Hawaii Attorney General Margery Bronster and Halawa Warden Eric Penarosa as Respondents to the Amended Petition. On December 14, 1998, the Honolulu City and County Prosecutor's Office timely answered the Amended Petition on behalf of Respondents. On December 31, 1998, Petitioner filed a traverse to Respondents' Answer to the Amended Petition. Upon careful review of the Amended Petition, Respondents' Answer and Memorandum in support, Petitioner's traverse, as well as the full record before the court, Respondents' motion to dismiss the Amended Petition is GRANTED.

BACKGROUND

On November 27, 1993, Petitioner was indicted on three counts of Sexual Assault in the First Degree, in violation of Hawaii Revised Statutes ("Haw.Rev.Stat."), Section 707-730(1); one count of Attempted Sexual Assault in the First Degree, in violation of Haw.Rev.Stat. §§ 707-500 and 707-730(1)(a); one count of Kidnapping, in violation of Haw. Rev.Stat. § 707-720(1)(d); and four counts of Sexual Assault in the Third Degree in violation of Haw.Rev.Stat. § 707-732(1)(e). (See Answer at 1-2). On August 23, 1994, Petitioner was found guilty by jury trial of all counts against him. Id. On October 21, 1994, Petitioner was sentenced to twenty years incarceration for Counts I-IV, ten years incarceration for Count V, and five years incarceration for Counts VI-IX, all terms to run concurrently.¹

On or about July 29, 1995, Petitioner directly appealed his conviction. (See Answer at 1-2). On direct appeal, Petitioner raised two points of error: (1) there was insufficient evidence of "strong compulsion" on Counts I-IV and VI-IX to sustain the guilty verdict; and (2) there was no evidence of "penetration" to sustain the guilty verdict on Count II. (See id., Exhibit A at 4). On April 24, 1997, the Intermediate Court of Appeals affirmed Petitioner's conviction. Approximately one year later, Petitioner filed a motion with the Hawaii Supreme Court dated July 3, 1998, which was construed as a motion for extension of time within which to file an application for writ of certiorari. On July 9, 1998, the Hawaii Supreme Court denied the motion as untimely filed pursuant to Haw.Rev.Stat. § 602-59(c), stating that "§ 602-59(c) does not allow for extensions of time to file a writ of certiorari." (July 9, 1998 Hawaii Supreme Court Order).

Petitioner filed his original federal habeas petition in this court on September 28, 1998. Upon direction from the court, Petitioner filed the Amended Petition on October 29, 1998. The Amended Petition raises two grounds for relief: (1) that the Prosecutor failed to disclose exculpatory evidence to the defense; and (2) that Petitioner had ineffective assistance of counsel.²

DISCUSSION

A. Jurisdiction

The Amended Petition names "Eric Penarosa, Warden, and Margery Bronster, Attorney General State of Hawaii" as Respondents. Thus, Petitioner has not explicitly named the Hawaii official with custody over him as respondent to this petition. However, Petitioner is proceeding pro se and this court must "construe a pro se litigant's habeas petition with deference." Belgarde v. Montana, 123 F.3d 1210, 1213 (9th Cir.1997). Apparently, Petitioner was originally confined at Halawa, then transferred to Texas, and later transferred to Minnesota. (See Amended Petition, Address, and Petitioner's First Response, Address). These out-of-state transfers have obviously confused Petitioner and have frustrated his attempts to name a proper respondent. Petitioner diligently attempted to comply with this court's directive to name the Hawaii official who has responsibility over him, by naming the last known such official, Eric Penarosa.

According to the advisory committee note to the Rules Governing Section 2254 Cases in the District Courts, Rule 2, the proper respondent to be served in the usual case may be "either the warden of the institution in which the petitioner is incarcerated or the chief officer in charge of state penal institutions." Rule 2(a), 28 U.S.C. foll. § 2254, advisory committee note; see also Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894-896 (9th Cir.1996) (California Director of Corrections may be proper respondent if he has the "power to produce a prisoner"). In Ortiz-Sandoval, the Ninth Circuit discussed the inherent problems resulting from prison transfers, and determined that naming the California Director of Corrections rather than the warden did not divest the district court of jurisdiction to consider the petition. 81 F.3d at 895. Simply put, the named respondent must have "the power to produce the prisoner" should the writ issue. Id. The Ninth Circuit noted that "a contrary result would not serve the efficient administration of justice," and refused to dismiss the petition for lack of a proper respondent. Id. at 896. The court stated that "[i]n cases where the prisoner has been transferred or where his immediate custodian has ... been put in doubt, the Director of Corrections serves as an effective respondent and eliminates procedural roadblocks to resolution on the merits. Prompt resolution of prisoners' claims is a principal function of habeas." Id. (citing Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 490, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973)).

Here, Petitioner may not know the name of the warden of his present facility, particularly because he has been transferred again. Petitioner also may not know the name of the Hawaii Director of Public Safety, as Keith Kaneshiro has recently resigned from that position and has been replaced by Ted Sakai. Knowing that he must name a warden, or some Hawaii official who has "the power to produce" him, he named Eric Penarosa, the last such official of which he is aware. He also named State Attorney General Margery Bronster, upon this court's direction, in hopes that this would satisfy the procedural requirements. To require him to amend the petition again, after the Amended Petition has already been answered would be inefficient and would only serve to frustrate the ends of justice. Such a result would put form over function, and elevate semantic technicalities over equity. Instead, this court will liberally construe Petitioner's naming of "Eric Penarosa, Warden" as an attempt to have named the Hawaii official with the power to "produce the prisoner," and substitute Ted Sakai as Respondent instead of Eric Penarosa. Accordingly, the Clerk is directed to serve a copy of this Order, any subsequent court-produced documents, as well as a copy of the Amended Petition, upon Director D.P.S. Ted Sakai, or his representative. See Allen v. Oregon, 153 F.3d 1046, 1050 (9th Cir.1998) (district court's failure to serve petition upon petitioner's custodian deprives court of in personam jurisdiction).

B. Statute of Limitation

Respondent argues that the Petition is time-barred by 28 U.S.C. § 2244(d)(1). The Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA") became law on April 24, 1996. For the first time, the AEDPA imposed a statute of limitation on petitions for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 and § 2255. Any petitions challenging non-capital state convictions or sentences must now be filed within one year from the date on which the judgment became final by conclusion of direct review, or the expiration of the time for seeking such review. See 28 U.S.C. § 2244(d)(1)(A). There are some occasions when the limitation period runs from a later date than the date on which the judgment became final, but Petitioner's case does not present such circumstances. See 28 U.S.C. § 2244(d)(1)(B)-(D).³

The Intermediate Court of Appeals ("ICA"), affirmed Petitioner's conviction on April 24, 1997. Pursuant to Hawaii Rules of Appellate Procedure ("H.R.A.P."), Rule 31(e)(1), Petitioner then had ten days, until May 4, 1997, within which to apply for a writ of certiorari from the Hawaii Supreme Court.⁴ Petitioner did not do so. Thus, Petitioner's conviction and sentence were finalized no later than May 4, 1997, and the statute began to run on that date.⁵ Petitioner's deadline for filing a habeas petition in federal court was one year from the ICA Order, plus the extra ten days that he had to file his application for certiorari, or May 3, 1998. Petitioner filed his original petition in this action on September 28, 1998, well beyond the statutory filing date.

The running of the one-year statute of limitation is tolled for the time period during which a properly filed application for post-conviction or other collateral review is pending in the state court. See 28 U.S.C. § 2244(d)(2), see also Reyes v. Keane, 90 F.3d 676, 678 (2d Cir.1996). Petitioner has not filed any petition for state post-conviction relief of which this court is aware, and is not entitled to tolling of the statute on this basis. Unless the Amended Petition is entitled to equitable tolling, it is time-barred.

The Ninth Circuit has held that the one-year statute of limitation is subject to equitable tolling if "`extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time," Calderon v. United States District Court for Central District of California, 128 F.3d 1283, 1288-89 (9th Cir.1997) (equitable tolling...