Jelks v. Thomas
| Decision Date | 29 June 2011 |
| Docket Number | CIVIL NO. 08-00108 JMS-RLP |
| Parties | KENNETH JELKS, #A0249413, Petitioner, v. WARDEN TODD THOMAS, CLAYTON FRANK, Respondents. |
| Court | U.S. District Court — District of Hawaii |
On October 22, 1996, Jelks was convicted in the Circuit Court of the First Circuit, State of Hawaii ("circuit court"), of attempted murder in the second degree. He was sentenced to a life term with the possibility of parole. On April 15, 1997, the HPA held a hearing to determine Jelks' minimum term. See Doc. No. 6-3, Att. 2,1 "Notice and Order Fixing Minimum Term(s) of Imprisonment" ("1997 Notice"). Jelks was represented by counsel at the hearing. On April 17, 1997, the HPA set Jelks' minimum term at twenty years. Id. The 1997 Notice did not specify Jelks' level of punishment or the significant criteria upon which Jelks' minimum term decision was based, as required by the HPA's 1989 Guidelines for Establishing Minimum Terms of Imprisonment ("1989 HPA Guidelines").2 The Hawaii Supreme Court affirmed Jelks' conviction and entered judgment on August20, 1998. Jelks did not seek certiorari from the United States Supreme Court.
In 2004, Jelks filed his first petition for post-conviction relief pursuant to Rule 40 of the Hawaii Rules of Penal Procedure ("HRPP"), under S.P.P. No. 04-1-0003. Doc. No. 6-4, Att. 3. Jelks claimed that the HPA failed to credit him with eleven days of presentence detention. Jelks did not challenge his twenty-year minimum term or the 1997 Notice's omission of his level of punishment or the criteria used for setting the minimum term. On February 24, 2005, the circuit court dismissed this Rule 40 Petition for lack of merit. Doc. No. 6-5, Att. 4. Jelks appealed and the circuit court concluded that his notice of appeal was untimely. Doc. No. 6-7, Att. 6. On March 9, 2006, the Hawaii Supreme Court dismissed Jelks' untimely appeal for lack of jurisdiction. Doc. No. 6-8, Att. 7.
While the first Rule 40 Petition was pending in state court, Jelks was petitioning the HPA directly to reduce his twenty-year minimum term. In 2004, Jelks sought reconsideration of his minimum term or an early parole hearing. See Doc. Nos. 6-9, 6-10, Atts. 8 & 9, (App. G, Parts 1 & 2), "Petition for Post-Conviction Relief." The HPA denied Jelks' requests on October 29, 2004. Doc. No. 6-10, Att. 9 at 31. Jelks continued seeking a reduction of his minimum term in November 2004, which the HPA denied on April 25, 2005. Id. at 33-41. On May 7, 2005, Jelks wrote the HPA requesting an explanation. See id., at 44. On June 7,2005, the HPA informed Jelks that his minimum term remained appropriate and directed him to take his concerns to the court. Id. at 44.
Apparently recognizing that the 1997 Notice did not conform to the HPA's 1989 Guidelines, however, the HPA issued an amended Notice and Order Fixing Minimum Term(s) ("2005 Notice") on June 28, 2005. Doc. No. 6-9, Att. 8 at 36. The 2005 Notice clarified that Jelks' level of punishment was "Level III," set forth the factors it had considered when it determined his minimum term,3 and reiterated that his minimum term of imprisonment was twenty years. Id. The HPA did not hold another minimum term hearing prior to issuing the 2005 Notice.
On November 30, 2005, Jelks filed his second Rule 40 Petition ("Second Rule 40 Petition") alleging that the 2005 Notice illegally increased his level of punishment from Level I to Level III, resulting in a longer minimum term.4 Doc. No. 6-9, Att. 8 at 1-8. On March 24, 2006, the circuit court dismissed the Second Rule 40 Petition as patently frivolous. Doc. No. 6-11, Att. 10. The circuit court found that the 1997 Notice omitted Jelks' level of punishment but never set it at Level I, and that Jelks' minimum term had always been twenty years. Id. at 3.Jelks attempted to appeal, see Doc. No. 6-12, Att. 11, but due to a series of docketing and clerical errors the Hawaii Intermediate Court of Appeals ("ICA") dismissed Jelks' appeal on February 27, 2007, without reaching the merits of his claims. See Doc. Nos. 6-13-6-15, Atts. 12-14. On April 26, 2007, the Hawaii Supreme Court rejected Jelks' application for certiorari. Doc. No. 17, Att. 16.
Jelks signed the instant Petition on February 26, 2008; it was received and filed on March 4, 2008. See Doc. No. 1, Pet. The Petition claims that the HPA: (1) incorrectly set Jelks' minimum term at twenty years in the 1997 Notice ("Claim One"); and (2) improperly enhanced Jelks' level of punishment from Level I to Level III when it issued the 2005 Notice ("Claim Two"). Jelks alleges this violated HPA guidelines and his rights to due process, equal protection, double jeopardy, and freedom from ex post facto punishment. Doc. No. 1, Pet. at 5; Doc. No. 4, Mem. in Support at 4-10.
On September 25, 2008, this court dismissed the Petition, holding Claim One was time-barred and Claim Two was unreviewable without clarification from the state court. Doc. No. 36, "Order Dismissing Petition and Denying Pending Motion." Jelks appealed, arguing that he properly exhausted Claim Two. The Ninth Circuit upheld the dismissal of Claim One, but vacated and remanded Claim Two. See Doc. No. 47. The court held that, "[b]ecause the available stateprocess appears to be ineffective to protect whatever federal rights Jelks may have in relation to the 2005 Order and Notice, Jelks is not required to pursue further efforts to exhaust his state court remedies before seeking a federal forum for his due process challenge" in Claim Two. Id. at 2.
On March 31, 2011, the HPA notified Jelks that it was scheduling a new minimum term hearing for him. See Doc. No. 51-2. The HPA set the hearing for May 16, 2011. Doc. No. 56 at 4. Jelks, however, refused to sign or return the HPA's forms so that his counsel could be notified and given the relevant information. On May 16, 2011, Jelks refused to participate in the hearing. The HPA has rescheduled another minimum term hearing to be held in July 2011.
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some violation of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for an alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085.
"Federal habeas relief may not be granted for claims subject to§ 2254(d) unless it is shown that the earlier state court's decision 'was contrary to' federal law then clearly established in the holdings of Court; or that it 'involved an unreasonable application of such law; or that it 'was based on an unreasonable determination of the facts' in light of the record before the state court." Harrington v. Richter, --- U.S. ---, 131 S. Ct. 770, 785 (2011) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)) (internal citations modified); 28 U.S.C. § 2254. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Richter, 131 S. Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
Additionally, a state court's factual determinations "shall be presumed to be correct," on federal habeas review, and a petitioner can overcome that presumption only by "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Bains v. Cambra, 204 F.3d 964, 972 (9th Cir. 2000).
Jelks alleges that the HPA violated its own guidelines, state law, and the Due Process, Equal Protection, Double Jeopardy, and Ex Post Facto Clauses of the United States Constitution when it issued the 2005 Notice, allegedly changing his Level I punishment status to Level III. This, he claims, resulted in a greater minimum term, without being afforded a new minimum term hearing as required by Coulter v. State, 116 Haw. 181, 172 P.3d 493 (2007).5 To clarify, Jelks is not challenging the denial or revocation of parole, or an amended judgment of sentence in his criminal case. Jelks is challenging the 2005 Notice -- an amended HPA notice and order that clarified the basis for originally setting his minimum term of imprisonment at twenty years, but did not change his minimum or maximum term of imprisonment or in any other way affect his 1997 judgment of conviction or sentence. Jelks seeks an order "correcting" his Level III status to Level I, which he believes would result in a new minimum term of five to ten years. Jelks recognizesthat the remedy for his claim is to "vacate[] and remand[] back to the HPA for immediate habeas releif [sic]," that is, for a new minimum term hearing, but argues that, because he has already served more than ten years, he is entitled to release. Doc. No. 4, Mem. in Support at 7; Doc. No. 53 at 3.
R...
To continue reading
Request your trial