Kamana'o v. Chang

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
ANDREW K. KAMANA'O,
Plaintiff,
vs.
KEVIN D. CHANG, MAGISTRATE
JUDGE, UNITED STATES DISTRICT
COURT;
Defendant.
CIV. NO. 23-00628 LEK-KJM
ORDER: DISMISSING WITHOUT PREJUDICE PLAINTIFF’S
COMPLAINT FOR A CIVIL CASE; RESERVING RULING ON
PLAINTIFF’S APPLICATION TO PROCEED IN DISTRICT COURT
WITHOUT PREPAYING FEES OR COSTS; AND DIRECTING
THAT PLAINTIFF’S FILING FEE BE REFUNDED
On December 27, 2023, pro se Plaintiff Andrew K.
Kamana`o (“Kamana`o”) filed his Complaint for a Civil Case
(“Complaint”) and an Application to Proceed in District Court
Without Prepaying Fees or Costs (“Application”). [Dkt. nos. 1,
3.] For the reasons set forth below, the Complaint is hereby
dismissed without prejudice to the filing of a petition pursuant
to Title 28 United States Code Section 2254. In light of the
dismissal of the Complaint, this Court will reserve ruling on
the Application until Kamana`o files his Section 2254 petition.
Further, the Clerk’s Office is directed to refund the filing fee
for a civil action that Kamana`o paid on December 28, 2023.
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BACKGROUND
Kamana`o states that, “[w]hile on probation in 1981
for kidnapping and firearms, [he] was wrongfully convicted /
indicted [in a state court] as the ‘Black Point Serial Rapist.’”
[Complaint at pg. 5, § III.] Kamana`o filed the instant case to
seek expungement of his conviction, “sealing and exonerat[ion]
with Prejudice,” and cancellation of the order requiring him to
register as a sex offender. [Id. at pg. 6, § IV.] Kamana`o names
retired United States Magistrate Judge Kevin S. Chang (“Judge
Chang”) as the defendant in this case because, according to
Kamana`o, in 2006, Judge Chang ordered that Kamana`o be
resentenced. [Id. at pg. 2, § I.B.; 1 id. at pg. 5, § III.]
On April 27, 2004, the State of Hawai`i Circuit Court
of the First Circuit (“the state court”) entered a judgment of
conviction against Kamana`o for the following charges: “three
counts of Burglary in the First Degree, two counts of Rape in
the First Degree, one count of Attempted Sodomy in the Third
Degree, one count of Sodomy in the First Degree, one count of
Sexual Abuse in the First Degree, and one count of Harassment.”
State v. Kamana`o, No. 26592, 2005 WL 1428522, at *1 (Hawai`i
1 Kamana`o mistakenly identifies Judge Chang as “Kevin D.
Chang.” See Complaint at pg. 2, § I.B.
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Ct. App. June 20, 2005). The Hawai`i Intermediate Court of
Appeals (“ICA”) affirmed the judgment on appeal. Id.
On October 27, 2005, in this district court, Kamana`o
filed a petition for habeas corpus relief pursuant to Title 28
United States Code Section 2254. [Kamana`o v. Peyton et al.,
CV 05-00681 SOM-KSC (“CV 05-681”), dkt. no. 1.] On May 10, 2006,
Judge Chang issued his Findings and Recommendation to Grant
Petition for Writ of Habeas Corpus. [CV 05-681, dkt. no. 16.] On
June 21, 2006, the district judge issued an order adopting the
findings and recommendation in part, modifying it in part, and
supplementing it. [CV 05-681, dkt. no. 26. 2 ] The district judge
granted the Section 2254 petition and ordered the State of
Hawai`i to resentence Kamana`o. [Id. at 18.]
Following the grant of habeas relief, the state court
resentenced Kamana`o, and issued an Amended Judgment of
Conviction and Sentence on October 16, 2006. The ICA affirmed
the amended judgment on appeal, and the Hawai`i Supreme Court
affirmed the ICA’s summary disposition order. See State v.
Kamana`o, No. 28236, 2007 WL 4348945 (Hawai`i Ct. App. Dec. 13,
2007), aff’d, 118 Hawai`i 210, 188 P.3d 724 (2008).
2 The district judge’s order in CV 05-681 is also available
at 2006 WL 1775869.
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Kamana`o filed another Section 2254 petition in this
district court on July 9, 2009. [Kamana`o v. Frank et al.,
CV 09-00313 JMS-BMK (“CV 09-313”), Petition Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State Custody,
filed 7/9/09 (dkt. no. 1).] That petition was denied with
prejudice. [CV 09-313, Order (1) Adopting the Findings and
Recommendation to Deny Petition for Writ of Habeas Corpus and
(2) Granting in Part and Denying in Part Certificate of
Appealability, filed 4/30/10 (dkt. no. 27). 3 ] The decision in
CV 09-313 was affirmed on appeal, and the United States Supreme
Court denied the petition for a writ of certiorari. [CV 09-313,
Ninth Circuit Memorandum, filed 9/20/11 (dkt. no. 37); id.,
letter from the Supreme Court of the United States Office of the
Clerk, filed 3/21/12 (dkt. no. 41). 4 ]
STANDARD
“Federal courts can authorize the commencement of any
suit without prepayment of fees or security by a person who
submits an affidavit that demonstrates he is unable to pay.”
Smallwood v. Fed. Bureau of Investigation, CV. NO. 16-00505 DKW-
3 The district judge’s order in CV 09-313 is also available
at 2010 WL 1783560.
4 The Ninth Circuit Memorandum is also available at 450 F.
App’x 631, and the denial of certiorari is noted at 565 U.S.
1267.
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KJM, 2016 WL 4974948, at *1 (D. Hawai`i Sept. 16, 2016) (citing
28 U.S.C. § 1915(a)(1)).
The Court subjects each civil action
commenced pursuant to Section 1915(a) to
mandatory screening and can order the dismissal
of any claims it finds “frivolous, malicious,
failing to state a claim upon which relief may be
granted, or seeking monetary relief from a
defendant immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122,
1126-27 (9th Cir. 2000) (en banc) (stating that
28 U.S.C. § 1915(e) “not only permits but
requires” the court to sua sponte dismiss an in
forma pauperis complaint that fails to state a
claim);[ 5 ] Calhoun v. Stahl, 254 F.3d 845, 845
(9th Cir. 2001) (per curiam) (holding that “the
provisions of 28 U.S.C. § 1915(e)(2)(B) are not
limited to prisoners”).
Id. at *3.
In addition, the following standards apply in the
screening analysis:
Plaintiff is appearing pro se; consequently,
the court liberally construes her pleadings.
Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.
1987) (“The Supreme Court has instructed the
federal courts to liberally construe the
‘inartful pleading’ of pro se litigants.” (citing
Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per
curiam))). The court also recognizes that
“[u]nless it is absolutely clear that no
amendment can cure the defect . . . a pro se
litigant is entitled to notice of the complaint’s
deficiencies and an opportunity to amend prior to
dismissal of the action.” Lucas v. Dep’t of
Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also
Lopez v. Smith, 203 F.3d 1122, 1126 (9th. [sic]
Cir. 2000).
5 Lopez has been overruled, in part, on other grounds by
Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc).
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Despite the liberal pro se pleading
standard, the court may dismiss a complaint
pursuant to Federal Rule of Civil
Procedure 12(b)(6) on its own motion. See Omar v.
Sea–Land Serv., Inc., 813 F.2d 986, 991 (9th Cir.
1987) (“A trial court may dismiss a claim sua
sponte under [Rule] 12(b)(6). Such a dismissal
may be made without notice where the claimant
cannot possibly win relief.”); see also Baker v.
Dir., U.S. Parole Comm’n, 916 F.2d 725, 727 (D.C.
Cir. 1990) (holding that district court may
dismiss cases sua sponte pursuant to
Rule 12(b)(6) without notice where plaintiff
could not prevail on complaint as alleged). . . .
“Federal courts are courts of limited
jurisdiction,” possessing “only that power
authorized by Constitution and statute.” United
States v. Marks, 530 F.3d 799, 810 (9th Cir.
2008) (quoting Kokkonen v. Guardian Life Ins.
Co., 511 U.S. 375, 377 (1994)). The assumption is
that the district court lacks jurisdiction. See
Kokkonen, 511 U.S. at 377. Accordingly, a “party
invoking the federal court’s jurisdiction has the
burden of proving the actual existence of subject
matter jurisdiction.” Thompson v. McCombe, 99
F.3d 352, 353 (9th Cir. 1996).
Flores v. Trump, CIVIL 16-00652 LEK-RLP, 2017 WL 125698, at *1
(D. Hawai`i Jan. 12, 2017) (some alterations in Flores) (some
citations omitted), reconsideration denied, 2017 WL 830966
(Mar. 2, 2017).
DISCUSSION
I. 	Screening of the Complaint
The instant case attempts to assert another challenge
to Kamana`o’s conviction and sentence by the state court.
Because Kamana`o is not asserting a cause of action against
Judge Chang, the Complaint fails to state a claim upon which
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relief can be granted. This Court therefore dismisses the
Complaint pursuant to Rule 12(b)(6). See Omar, 813 F.2d at 991.
This Court must next consider whether the dismissal should be
without prejudice.
If Kamana`o is still in the custody of the State of
Hawai`i pursuant to the judgment of conviction and sentence that
he attempted to challenge in the Complaint, he may be able to
file a Section 2254 petition. Section 2254 states, in relevant
part:
(a) 	The Supreme Court, a Justice thereof, a
circuit judge, or a district court shall
entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant
to the judgment of a State court only on the
ground that he is in custody in violation of the
Constitution or laws or treaties of the United
States.
(b)(1) An application for a writ of habeas corpus
on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
unless it appears that--
(A) 	the applicant has exhausted the
remedies available in the courts of the
State; or
(B)(i) there is an absence of available
State corrective process; or
(ii) circumstances exist that render
such process ineffective to protect the
rights of the applicant.
It appears that Kamana`o is no longer serving a term of
imprisonment. See Complaint at pg. 2, § I.A (giving what appears
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to be an apartment in Honolulu as his address of record).
However, Kamana`o would be considered to be “in custody” if he
is on parole, or if he is subject to some other signific
restraint on his liberty, pursuant to the judgment of conviction
and sentence that he attempted to challenge in the Complaint.
See Lehman v. Lycoming Cnty. Children’s Servs. Agency, 458 U.S.
502, 509 (1982) (noting the United States Supreme Court has
“considered the parolee in ‘custody’ for purposes of § 2254(b)
because ‘the custody and control of the Parole Board involve
significant restraints on petitioner’s liberty . . . which are
in addition to those imposed by the State upon the public
generally’” (quoting Jones v. Cunningham, 371 U.S. 236, 242
(1963))).
If Kamana`o is not considered to be “in custody,” he
would need to file a petition for a writ of coram nobis to
challenge his prior conviction and sentence. This district court
has stated:
A writ of coram nobis is “a highly unusual
remedy, available only to correct grave
injustices in a narrow range of cases where no
more conventional remedy is applicable.” United
States v. Riedl, 496 F.3d 1003, 1005 (9th Cir.
2007). It is distinguishable from the ancient
writ of habeas corpus, available only to
convicted defendants in “custody.” See Hensley v.
Municipal Court, 411 U.S. 345, 349 (1973); Jones
v. Cunningham, 371 U.S. 236, 243 (1963). . . . A
writ of coram nobis . . . allows a petitioner to
attack a conviction when the petitioner has
already finished his sentence and is no longer in
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custody. See McKinney v. United States, 71 F.3d
779, 781 (9th Cir. 1995).
Shin v. United States, CRIM. NO. 04-00150 SOM, 2021 WL 4944028,
at *11 (D. Hawai`i Oct. 22, 2021). 6 However, if Kamana`o seeks a
writ of coram nobis, his must do so in the state court which
convicted and sentenced him.
As a “writ of error coram nobis attacking [a]
conviction may only be brought in the sentencing
court,” United States v. Monreal, 301 F.3d 1127,
1131 (9th Cir. 2002), “[c]oram nobis relief is
not available in federal court to attack a state
court conviction,” Casas-Castrillon v. Warden,
265 F. App’x 639, 640 (9th Cir. 2008). Accord
Pomeroy v. Alaska, 785 F. App’x 470, 470 (9th
Cir. 2019) (“The district court properly
dismissed Pomeroy’s petition challenging his
Alaska state conviction for assault because coram
nobis relief is not available in federal court to
attack a state court conviction.”); Hensley v.
Municipal Court, 453 F.2d 1252, 1252 n.2 (9th
Cir. 1972) (“We are unable to treat this petition
as one seeking coram nobis relief because [the
petitioner] seeks to challenge a state court
proceeding in federal court. Coram nobis lies
only to challenge errors occurring in the same
court.”), rev’d on other grounds, 411 U.S. 345
(1973).
Patterson v. California, Case No. 1:22-cv-01049-EPG-HC, 2022 WL
4086911, at *1 (E.D. Cal. Sept. 6, 2022) (alterations in
Patterson). 7
6 Shin was affirmed on appeal. Shin v. United States,
No. 21-16833, 2023 WL 2523613 (9th Cir. Mar. 15, 2023), cert.
denied, 144 S. Ct. 195 (2023).
7 The magistrate judge’s findings and recommendation in
Patterson was adopted by the district judge. 2022 WL 16855884
(Nov. 10, 2022).
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It is not clear from the Complaint whether Kamana`o is
“in custody” for purposes of a possible Section 2254 petition.
Because Kamana`o may be able to file a Section 2254 petition
raising the arguments that he attempted to assert in the
Complaint, the dismissal of the Complaint is without prejudice
to the filing of a Section 2254 petition.
Before filing a Section 2254 petition based on the
arguments that he attempted to assert in the Complaint, Kamana`o
must obtain a certificate of appealability from the Ninth
Circuit Court of Appeals, unless he can show that his claims
were not ripe at the time that CV 09-313 was adjudicated.
A state prisoner is generally limited to a
single federal habeas petition. See 28 U.S.C.
§ 2244(b)(1). Prior to filing a second or
successive petition under 28 U.S.C. § 2254 in the
district court, “the applicant shall move in the
appropriate court of appeals for an order
authorizing the district court to consider the
application.” 28 U.S.C. § 2244(b)(3)(A); Burton
v. Stewart, 549 U.S. 147, 152–53 (2007); Chades
v. Hill, 976 F.3d 1055, 1056 (9th Cir. 2020).
Unless and until the Ninth Circuit
authorizes a district court to consider a second
or successive petition for writ of habeas corpus,
the court lacks jurisdiction to do so. See
Magwood v. Patterson, 561 U.S. 320, 330–31 (2010)
(“If an application is ‘second or successive,’
the petitioner must obtain leave from the court
of appeals before filing it with the district
court.”); Brown v. Muniz, 889 F.3d 661, 67 (9th
Cir. 2018) (“If the petition is second or
successive, then the district court lacks
jurisdiction and must dismiss the petition unless
and until the court of appeals grants an
application to file it.”).
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“Notwithstanding the prohibition of second
or successive petitions in most cases, not every
petition filed after an initial petition has been
adjudicated is considered second or successive.”
Brown v. Atchley, 76 F.4th 862, 866 (9th Cir.
2023). For example, “[p]risoners may file second-
in-time petitions based on events that do not
occur until a first petition is concluded, and
such petitions are not second or successive
because a claim does not become ripe until the
facts that give rise to the constitutional claim
first arise.” Id. at 867 (quotation marks and
citations omitted) (alteration in original).
Thus, “a prisoner whose conviction and sentence
were tested long ago may still file petitions
relating to denial of parole, revocation of a
suspended sentence, and the like because such
claims were not ripe for adjudication at the
conclusion of the prisoner’s first federal habeas
proceeding.” Id. (quotation marks and citation
omitted).
Martinez v. Hawai`i Paroling Auth., CIVIL NO. 23-00411 LEK-KJM,
2023 WL 7130671, at *1–2 (D. Hawai`i Oct. 30, 2023) (alteration
in Martinez).
II. 	Application
Insofar as the Complaint has been dismissed without
prejudice to the filing of a Section 2254 petition, it is not
appropriate to rule on the Application at this time. This Court
will therefore reserve ruling on the Application until Kamana`o
files a Section 2254 petition. If the Section 2254 petition
survives the screening process, this Court will then rule upon
the Application and address whether Kamana`o is entitled to
proceed without prepaying fees and costs.
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This Court also notes that, while the Application was
pending, Kamana`o paid the $405.00 filing fee associated with a
civil action. See receipt, filed 12/28/23 (dkt. no. 6). If
Kamana`o files a Section 2254 petition, the filing fee would be
$5.00. See United States District Court District of Hawaii,
Court Resources / Schedule of Fees & Online Payments,
https://www.hid.uscourts.gov/court-resources/schedule-of-fees
(last visited Apr. 7, 2024). This Court therefore directs the
Clerk’s Office to refund the filing fee that Kamana`o paid on
December 28, 2023.
If Kamana`o chooses to pay the $5.00 filing fee when
he files his Section 2254 petition, this Court will deem his
Application withdrawn. In other words, the payment of the $5.00
filing fee would show that Kamana`o does not wish to proceed in
forma pauperis.
CONCLUSION
For the foregoing reasons, the Complaint for a Civil
Case that Kamana`o filed on December 27, 2023, is HEREBY
DISMISSED. The dismissal is WITHOUT PREJUDICE to the filing of a
petition pursuant to Title 28 United States Code Section 2254.
If Kamana`o wishes to pursue a Section 2254 petition, and if he
is able to address the issues identified in this Order, he may
file his Section 2254 petition in this case by May 28, 2024.
This Court will reserve ruling on the Application to Proceed in
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District Court Without Prepaying Fees or Costs that Kamana`o
filed on December 27, 2023 until he files a Section 2254
petition. Because the filing fee for the Section 2254 petition
will be $5.00, the Clerk’s Office is DIRECTED to refund the
$405.00 filing fee that Kamana`o paid on December 28, 2023. If
Kamana`o chooses to pay the $5.00 filing fee when he files his
Section 2254 petition, his Application will be deemed withdrawn.
Kamana`o is CAUTIONED that, if he fails to file a
Section 2254 petition in this case by May 28, 2024, this case
will be closed. In that instance, if he chooses to file a
Section 2254 petition at a later date, a new civil case would be
opened. Kamana`o is also CAUTIONED that, if he files a
Section 2254 petition in this case by May 28, 2024, but the
petition does not address either the “in custody” requirement or
the certificate of appealability requirement discussed in this
Order, his petition will be dismissed.
The Clerk’s Office is DIRECTED to send Kamana`o a copy
of the form Petition Under 28 U.S.C. § 2254 for Writ of Habeas
Corpus by a Person in State Custody with this Order.
IT IS SO ORDERED.
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DATED AT HONOLULU, HAWAII, April 12, 2024.
ANDREW K. KAMANA`O VS. KEVIN D. CHANG, ETC.; CV 23-00628 LEK-
LKM; ORDER: 	DISMISSING WITHOUT PREJUDICE PLAINTIFF’S COMPLAINT
FOR A CIVIL CASE; RESERVING RULING ON PLAINTIFF’S APPLICATION TO
PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS; AND
DIRECTING THAT PLAINTIFF’S FILING FEE BE REFUNDED
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