Freudenberg v. State

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-NOV-2023
08:02 AM
Dkt. 75 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

JOHN A. FREUDENBERG, Petitioner-Appellant, v.
STATE OF HAWAI#I, Respondent-Appellee, and
CLARE E. CONNORS in her Official Capacity as
Attorney General for the State of Hawai#i,
Respondent-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(S.P.P. NO. 1PR191000018 (CR NOS. 1PC000057543 and 1PC000057327))

MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)

Self-represented Petitioner-Appellant John A.

Freudenberg (Freudenberg) appeals from the Findings of Fact,

Conclusions of Law and Order Denying Amended Petition to Vacate,

Set Aside, or Correct Judgment or to Release Petitioner from

Custody, entered on March 15, 2021 (Order Denying Rule 40

Petition), in the Circuit Court of the First Circuit (First

Circuit Court).1

I. BACKGROUND

On July 22, 1982, a grand jury indicted Freudenberg for

thirty-three felonies, including rape, sodomy, attempted rape,

1
The Honorable Trish K. Morikawa presided.
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burglary, attempted burglary, and sexual abuse. On September 15,

1982, Freudenberg was indicted for three additional felonies of

attempted rape, burglary, and attempted sodomy. On November 30,

1983, Freudenberg pleaded guilty to all thirty-six charges. In

the first case, the First Circuit Court sentenced Freudenberg to

life imprisonment on the ten counts of rape, sodomy, and

attempted rape; twenty years on the seventeen counts of burglary

and attempted burglary; and ten years on the six counts of sexual

abuse. In the second case, the First Circuit Court sentenced
Freudenberg to life imprisonment on the two counts of attempted

rape and attempted sodomy, and twenty years on the burglary

count.

The Hawaii Paroling Authority (HPA) initially set

Freudenberg's minimum terms of imprisonment at twenty years on

the rape, sodomy, attempted rape, burglary and attempted burglary

convictions, and ten years on the attempted sexual abuse charges

from the first case; and twenty years on the convictions in the

second case.2 In 1990, the HPA reduced Freudenberg's twenty-year

minimum terms to fourteen-year minimums in both cases.

Freudenberg became eligible to be considered for parole

in July of 1996, and Freudenberg submits that he has completed

the State of Hawaii's (State's) Sex Offender Treatment Program

and Behavior Modification Program. Despite applying for parole

numerous times since July of 1996, Freudenberg has not been

granted parole.

2
In 1986, rape, sodomy, and other sexual offenses were incorporated
into a series of sexual assault offenses. See State v. Buch, 83 Hawai #i 308,
315, 926 P.2d 599, 606 (1996).

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On January 24, 2005, Freudenberg, self-represented,

filed a civil action against the State in the Circuit Court of

the Third Circuit (Third Circuit Court), in Civil No. 05-1-0015.

Freudenberg requested various damages and other relief, including

that he be transferred to the prison work furlough program. On

August 23, 2005, the Third Circuit Court dismissed the complaint

without prejudice.

On June 17, 2014, Freudenberg filed a complaint against

the Director of the State Department of Public Safety (DPS) and

Deputy Director of Corrections at DPS, in the United States

District Court for the District of Hawai#i (Federal District

Court), under Civil No. 14-000276 DKW-KSC, arguing that the State

officials violated 42 U.S.C. § 1983 by repeatedly denying

Freudenberg's requests to participate in the work furlough

program, which Freudenberg alleged was a condition precedent to

his parole. The Federal District Court dismissed the complaint,

ruling that Freudenberg failed to state a claim upon which relief

could be granted under 42 U.S.C. § 1983, because he failed to

identify any federally-protected right that was violated.

Freudenberg v. Sakai, Civil No. 14-00276 DKW-KSC, 2014 WL
4656485, at *1-2 (D. Haw. Sept. 16, 2014) (Order).

On August 28, 2019, in the proceeding underlying this

appeal, Freudenberg filed a petition for relief pursuant to

Hawai#i Rules of Penal Procedure (HRPP) Rule 40 with the First

Circuit Court (Rule 40 Petition) arguing that, by refusing to

fairly consider him for parole, HPA and DPS violated his: (1)

Due Process rights under article I, section 5 of the Hawai#i

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Constitution; (2) Equal Protection rights under article I,

section 5 of the Hawai#i Constitution; (3) right to be free from

cruel and unusual punishment under article I, section 12 of the

Hawai#i Constitution; (4) Due Process rights under the Fourteenth

Amendment to the United States Constitution; (5) Equal Protection

rights under the Fourteenth Amendment to the United States

Constitution; and (6) right to be free from cruel and unusual

punishment under the Eighth Amendment to the United States

Constitution. Freudenberg filed an amended HRPP Rule 40 petition
on November 21, 2019 (Amended Rule 40 Petition).

Freudenberg alleged that HPA denied him parole twenty-

three times between September of 1996 and July of 2019, and that

each time, HPA recommended that Freudenberg complete the work

furlough program to be eligible for parole. Freudenberg alleged

that, since September of 1996, he filed at least eight requests

for admission to the work furlough program with DPS. DPS

allegedly denied Freudenberg's applications despite rating him as

"'community custody,' the lowest custody level," holding him in a

low-security facility, and allowing him to work in the community

on numerous occasions.

Freudenberg further alleged that he believes that other

inmates convicted of sexual offenses, who are diagnostically

rated as greater risks than him and have completed the Sex

Offender Treatment Program, have been admitted to work furlough.

However, even though he completed the Sex Offender Treatment

Program and Behavioral Modification Program, and met all written

eligibility requirements of DPS for work furlough, DPS would not

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allow him into the work furlough program. Freudenberg alleged

that DPS gave him no reason at all or provided "blatantly

pretextual justifications" for denying him admission to the work

furlough program, such as claiming that DPS needed to make

changes or improvements to its program before he would be

admitted.

On December 20, 2019, the State answered the Amended

Petition, denying that Freudenberg's state and federal

constitutional rights were violated by his continued
imprisonment. By reference to its answer to the original

petition, the State further argued that Freudenberg's claims have

been waived or previously ruled upon and Freudenberg does not

have a right to parole.

On March 15, 2021, the First Circuit Court denied the

Amended Rule 40 Petition without a hearing. The First Circuit

Court concluded, inter alia:
2. The factual basis, arguments, and claims raised
by Petitioner in the United States District Court in 2014
are the same being raised in this current Petition as listed
in Petitioner's issues four [Fourteenth Amendment Due
Process], five [Fourteenth Amendment Equal Protection] and
six [Eighth Amendment]. As noted in the Findings of Fact,
Petitioner's claims in the United States District Court were
dismissed with prejudice for failure to state a claim upon
which he could obtain relief under either the 8 th or 14th
Amendment. Pursuant to HRPP Rule 40(a)3, these same issues
shall be denied as they were previously raised and ruled
upon.

3. Similarly, Petitioner's prior filing for
injunctive relief and damages under Civil No. 05-1-0015
which addressed issues one through three and the subsequent
dismissal by the Third Circuit Court is a basis for denying
the remainder of this current Petition pursuant to HRPP Rule
40(a)3.

4. Assuming, for argument sake, that issues one
through three were not previously ruled upon, the following
addresses the issues raised.
5. Petitioner in issue number one is alleging a
violation of his Due Process Rights under Article 1, section

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5 of the Hawai#i Constitution. Hawai#i Rules of Penal
Procedure Rule 40 is the appropriate means to challenge an
HPA decision denying parole. However, the Intermediate
Court of Appeals of Hawai#i (hereinafter ICA) in Turner v.
Hawai#i Paroling Authority, 93 Hawai#i 298, 1 P.3d 768 (App.
2000), held that the courts may review a decision denying
parole in situations where the parole board has failed to
exercise any discretion at all or arbitrarily and
capriciously abused its discretion so as to give rise to a
due process violation or has otherwise violated any
constitutional rights of the prisoner. Judicial review of a
parole board's decision denying parole is very limited and
narrow.
6. The Hawai#i Supreme Court in De La Garza v.
State, 302 P.3d 697, 129 Hawai#i 429 (2013) held that
procedural due process claims should be addressed in two
steps: 1. Whether a liberty or property interest has been
interfered with by the State. 2. What specific procedures
are required to satisfy due process.

7. In his due process claim, Petitioner is
asserting that he has a liberty interest in parole. The
Hawai#i Supreme Court in Williamson v. Hawai#i Paroling
Authority, 35 P.3d 210, 97 Hawai#i 183 (2001) reviewed
Hawai#i Revised Statutes Section 353-62 regarding the
responsibilities and duties of the HPA and Hawai #i Revised
Statutes Section 706-669 regarding the establishment of
minimum terms and held that the HPA has the authority to set
a prisoner’s minimum term at a period equal to his or her
maximum sentence. The Court stated, "even where the HPA
renders a prisoner effectively ineligible for parole by
setting his minimum term at a period equal to his maximum
sentence, the prisoner has been "considered for parole". Id
at 218. The Court in its decision made it clear that there
is a right to be considered for parole, not a right to
parole. Petitioner has had numerous parole hearings. Thus,
he has been considered for parole, but Petitioner has no
right to parole. With no liberty interest in a right to
parole, Petitioner has not met the first step in a
procedural due process claim and therefore there is no need
for any further analysis.

8. It should be noted that in regard to
Petitioner's numerous parole hearings, Petitioner has not
provided any evidence that there was a defect in the hearing
process.
9. The United States Supreme Court has also ruled
that there is no constitutional or inherent right to be
conditionally released from prison before the expiration of
a valid sentence. Greenholtz v. Inmates of Nebraska Penal &
Correctional Complex, 442 U.S. 1,7, 99 S.Ct. 2100, 22103, 60
L.ED.2d 668, 675 (1979). By both the State and Federal
Constitutions, Petitioner has no right to parole.
10. Petitioner in issue number two is alleging an
Equal Protection Rights violation under Article 1, Section 5
of the Hawai#i Constitution. Other than the allegation that
he believes that "all other inmates convicted of sexual
offenses who have successfully completed the Sex Offender
Treatment Program and were otherwise qualified for work
furlough have been, and continue to be, admitted to work
furlough, including some inmates who were diagnostically
rated as greater risks than Petitioner", Petitioner has not

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provided any facts or evidence, such as specific inmate
names and records of similarly situated inmates. Therefore
his claim is conclusory and without merit.
11. In issue number three, Petitioner is alleging
that his continued imprisonment, is a violation of his right
to be free from Cruel and Unusual Punishment under Article
1, Section 12 of the Hawai#i Constitution. Petitioner is
not challenging his convictions or sentences and is in fact
still serving his sentences in both Cr. No. 57327 and Cr.
No. 57543. The actions of PSD and HPA of denying work
furlough and parole have not extended Petitioner's sentence.
There is no cruel and unusual punishment because Petitioner
has not been detained beyond his sentence.
12. 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. Dan v. State, 76 Hawai #i 423, 427, 879
P.2d 528, 532 (1994).

13. Accordingly, this Court finds the entire Petition
to be without merit, patently frivolous, and without a trace
of support either in the record or from anything submitted
by Petitioner.

Freudenberg timely filed a notice of appeal on April

13, 2021.

II. POINTS OF ERROR

Freudenberg raises four points of error on appeal,

contending that the First Circuit Court erred in: (1) entering

Conclusions of Law (COLs) 2-3 because the issues raised in the

Rule 40 Petition and the Amended Rule 40 Petition were not the

issues as raised in the prior actions before the Third Circuit

Court and the Federal District Court and the issues raised in the

Third Circuit Court were never ruled upon; (2) entering COLs 5-9

and 12-13 because his Due Process rights were violated; (3)

entering COLs 10 and 12-13 because his Equal Protection rights

were violated; and (4) entering COLs 11-13 because he has been

subjected to cruel and unusual punishment.

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III. APPLICABLE STANDARD OF REVIEW

Review of orders denying HRPP Rule 40 petitions is de

novo. Lewi v. State, 145 Hawai#i 333, 345, 452 P.3d 330, 342

(2019).
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's
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.

Id. (citation omitted; format altered).

IV. DISCUSSION

A. Previously Ruled Upon

In COL 2 of the Order Denying Rule 40 Petition, the

First Circuit Court concluded that Freudenberg's contentions

based on the Eighth and Fourteenth Amendments to the United

States Constitution were previously ruled upon by the Federal

District Court in 2014. In COL 3, the First Circuit Court

similarly concluded that Freudenberg's contentions based on

article I, sections 5 and 12 of the Hawai#i Constitution should

be denied because they were previously raised in the Third

Circuit Court and dismissed.

HRPP Rule 40(a)(3) provides:
(3) 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. Except for a claim of illegal
sentence, 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

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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.

We conclude that the First Circuit Court did not err in

concluding that Freudenberg's claims based on the Fourteenth and

Eighth Amendments were raised and ruled upon in the Federal

District Court proceedings. In his federal court suit,

Freudenberg claimed that the defendants violated 42 U.S.C. § 1983

by repeatedly denying him access to a prison work furlough
program, which he contended was a condition precedent to his

parole. Freudenberg, 2014 WL 4656485, at *1. The Federal

District Court dismissed his complaint on the grounds that

Freudenberg did not raise a valid 42 U.S.C. § 1983 claim because

he failed to identify any federally protected right that was

violated. Id. at *2. The Federal District Court concluded that

Freudenberg's continued confinement and ineligibility for parole

did not amount to over-detention or cruel and unusual conditions

of confinement or any other conduct in violation of the Eighth

Amendment because he was not detained beyond his life sentence.

Id. at *3. Likewise, there were no violations of Freudenberg's
Due Process or Equal Protection rights under the Fourteenth

Amendment because prisoners have no constitutionally-protected

liberty interest in their eligibility for rehabilitative

programs, and allowing an Equal Protection challenge would

undermine the defendants' inherent discretion in administering

the work furlough program. Id. at *3-5. The issues ruled upon

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by the Federal District Court are essentially identical to claims

raised in this case based on the United States Constitution.

The First Circuit Court did not conclude that

Freudenberg's claims based on the Hawai#i Constitution were

barred by the Federal District Court's decision. Rather, the

First Circuit Court concluded that Freudenberg's claims based on

the Hawai#i Constitution should be denied based on the Third

Circuit Court proceedings.3 The First Circuit Court erred in

doing so.
First, no proceedings were actually conducted and ruled

upon. By definition, a dismissal without prejudice allows for

initiation of a new case raising the same claims. State v.

Kalani, 87 Hawai#i 260, 262, 953 P.2d 1358, 1360 (1998). Given

the lack of proceedings on the prior claims, and the Third

Circuit Court's dismissal without prejudice, we cannot conclude

that Freudenberg waived the claims raised therein based on the

Hawai#i Constitution or that they were ruled upon.

In addition, subsequent to the filing of Freudenberg's

Third Circuit Court Complaint, Freudenberg was allegedly denied

parole numerous times. Roughly fourteen additional years passed

between the Third Circuit Court proceedings and the filing of the

Rule 40 Petition herein. Freudenberg alleged that he has been

denied access to the work furlough program multiple times over

this period and that he was denied parole as a result. The Third

Circuit Court did not decide, and Freudenberg did not waive, the

3
The First Circuit Court nevertheless considered whether
Freudenberg's state-law contentions stated a colorable claim for relief.

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issue of whether Freudenberg's rights under the Hawai#i

Constitution were violated with respect to parole denials issued

after the August 23, 2005 dismissal in the Third Circuit Court

case.

Therefore, we conclude that Freudenberg's claims based

on the Hawai#i Constitution cannot be considered to have been

raised and ruled upon or waived in the prior action filed in the

Third Circuit Court.

B. Freudenberg's Colorable Claim for Relief
As noted above, Freudenberg challenges the First

Circuit Court's COLs concluding that he has not stated a

colorable claim for relief under the Hawai#i Constitution based

on Freudenberg's contention that he has been denied parole based

on his failure to participate in a work furlough program.

The Hawai#i Supreme Court reviewed a similar contention

in Rapozo v. State, 150 Hawai#i 66, 85-86, 497 P.3d 81, 100-01

(2021). In Rapozo, the Rule 40 petitioner (Rapozo) argued, inter

alia, that HPA wrongfully denied him parole based on his failure

to complete the work furlough program, which was unavailable to

him due to where he was incarcerated. Id. at 85, 497 P.3d at

100. As noted by the supreme court (id.), Hawaii Revised

Statutes § 353-64 (2015) states in part:
[T]o be eligible for parole, the committed person, if the
person is determined by the department to be suitable for
participation, must have been a participant in an academic,
vocational education, or prison industry program authorized
by the department and must have been involved in or
completed the program to the satisfaction of the department
and must have been involved in or completed the program to
the satisfaction of the department[.]

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The supreme court concluded that HPA may properly deny

parole based on a failure to participate in or complete a prison

industry program, such as a work furlough program. Rapozo, 150

Hawai#i at 85, 497 P.3d at 100. However, the supreme court

further concluded:
Although the HPA recommended he participate in or
complete the work furlough program, Rapozo was never given
the opportunity to do so. It may be arbitrary and
capricious to deny an incarcerated person parole for failure
to participate in a program while never giving them an
opportunity to do so. Thus, Rapozo stated a colorable
claim, and the circuit court erred by denying this claim
without a hearing.

Id. at 86, 497 P.3d at 101.

Here, on several occasions, including on August 18,

2014, September 12, 2017, and August 8, 2018, Freudenberg was

denied parole as follows:
REASON FOR DENIAL: Your participation in work furlough
while incarcerated will significantly enhance your success
on parole.

As the supreme court reiterated in Rapozo, HPA has the

discretion to grant or deny parole. Id. at 84, 497 P.3d at 99.

However,
Hawai#i courts may review "a decision denying parole in
situations where the parole board has failed to exercise any
discretion at all, or arbitrarily and capriciously abused
its discretion so as to give rise to a due process violation
or has otherwise violated any constitutional rights of the
prisoner." Williamson [v. Hawaii Paroling Authority], 97
Hawai#i [183,] 195, 35 P.3d [210,] 222 [(2001)] (cleaned
up).

Id. at 84-85, 497 P.3d at 99-100 (emphasis added; further

citation omitted).

Here, although HPA repeatedly identified lack of

participation in a work furlough program as the reason for

denying parole to Freudenberg, he was never given the opportunity

to participate in a work furlough program. As the supreme court

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held in Rapozo, "[i]t may be arbitrary and capricious to deny an

incarcerated person parole for failure to participate in a

program while never giving them an opportunity to do so." Id. at

86, 497 P.3d at 101. Thus, we conclude that Freudenberg stated a

colorable claim, and the First Circuit Court erred by denying

Freudenberg's Amended Rule 40 Petition without a hearing on this

ground.

We nevertheless conclude that Freudenberg failed to

allege a colorable claim for an Equal Protection Rights violation
under article I, section 5 or for a violation of his right to be

free from Cruel and Unusual Punishment under article I, section

12 of the Hawaii Constitution, as concluded by the First Circuit

Court.

V. CONCLUSION

For these reasons, we vacate the March 15, 2021 Order

Denying Rule 40 Petition with respect to Freudenberg's claim that

his Due Process rights under article 1, section 5 of the Hawai#i

Constitution were violated. We affirm the March 15, 2021 Order

Denying Rule 40 Petition in all other respects. We remand this

case to the First Circuit Court for further proceedings

consistent with this Memorandum Opinion.

DATED: Honolulu, Hawai#i, November 20, 2023.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
John A. Freudenberg,
Petitioner-Appellant Pro Se. /s/ Keith K. Hiraoka
Associate Judge
Craig Y. Iha,
Lisa M. Itomura, /s/ Clyde J. Wadsworth
Deputy Attorneys General, Associate Judge
for Respondents-Appellees.

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