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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 28-JUN-2021 07:59 AM Dkt. 10 SO
SCWC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
JERRICO LINDSEY, Petitioner/Petitioner-Appellant,
vs.
STATE OF HAWAI‘I, Respondent/Respondent-Appellee.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; S.P.P. NO. 17-1-0022; CR. NO. 1PC081000643)
SUMMARY DISPOSITION ORDER (By: Recktenwald, C.J., Nakayama, McKenna, and Wilson, JJ., and Circuit Judge Remigio, assigned by reason of vacancy)
I. INTRODUCTION
Jerrico Lindsey was convicted of second-degree murder
and several other charges in 2009. While serving his sentence
at a correctional facility in Arizona, Lindsey filed a Hawai‘i
Rules of Penal Procedure (HRPP) Rule 40 petition alleging that
he received ineffective assistance of counsel at trial.
Lindsey’s petition was devoid of any factual allegations,
stating simply that he intended to amend the petition after the
court appointed an attorney for him pursuant to a concurrently- ***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
filed motion for appointment of counsel. Seven months later,
the State filed its response to Lindsey’s petition; upon
receiving the State’s response, Lindsey moved to withdraw his
petition so he could amend it to include factual allegations.
However, unbeknownst to Lindsey, the Circuit Court of the First
Circuit (circuit court) 1 had dismissed his petition as “patently
frivolous and without a trace of support, either on the record,
or from the evidence submitted[.]” The circuit court
subsequently denied Lindsey’s motion to withdraw the petition,
and the Intermediate Court of Appeals (ICA) affirmed.
Lindsey seeks review of the ICA’s decision on the
ground that he was entitled to amend his petition under HRPP
Rule 40(e), which states, “The court may grant leave to amend or
withdraw the petition at any time. Amendment shall be freely
allowed in order to achieve substantial justice. No petition
shall be dismissed for want of particularity unless the
petitioner is first given an opportunity to clarify the
petition.”
Although it is typically appropriate to deny a motion
to withdraw filed after the dismissal of a Rule 40 petition, in
the specific context of this case, Lindsey’s motion should have
been construed as a motion to reconsider, and we hold that the
1 The Honorable Edwin C. Nacino presided.
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circuit court erred in dismissing Lindsey’s Rule 40 petition
without first providing him an opportunity to clarify his
claims. Thus, we vacate the ICA’s Summary Disposition Order
(SDO) and the circuit court’s order and remand to the circuit
court for further proceedings.
II. BACKGROUND
A. Circuit Court Proceedings
Throughout his Rule 40 proceedings, Lindsey was
incarcerated in Eloy, Arizona. It appears that all of his
filings were submitted through the prison’s mail system, and he
received notice of the State’s response and the court’s orders
in the same way.
Lindsey’s Rule 40 petition challenged his conviction
on the ground that his counsel was constitutionally ineffective.
In the space on the petition form for supporting facts, Lindsey
wrote, “Facts to be developed in amended petition. Desire
review by Court Appointed Attorney to determine issues.” No
other factual allegations were included in the petition.
Lindsey concurrently filed a motion for appointment of
counsel. In the motion, Lindsey stated that he was unable to
afford an attorney to handle the complex issues involved in his
petition, contended that his attack on his conviction would
involve interviewing newly discovered witnesses and “conflicting
testimony,” and argued that counsel would “better enable”
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Lindsey to argue his case.
The State filed a response to Lindsey’s petition
approximately seven months later. The State contended that the
lack of factual support for Lindsey’s allegations that he
received ineffective assistance of counsel justified dismissal
of his petition.
On May 3, 2018, ten days after the State filed its
response, the circuit court dismissed Lindsey’s Rule 40 petition
and denied his motion for appointment of counsel. 2
On May 4, 2018 - before Lindsey claims to have learned
that the circuit court had dismissed his petition - he filed a
motion to withdraw his petition without prejudice. In the
motion, Lindsey stated that he was seeking to withdraw the
petition so that he could “formulate . . . an [amended] petition
correctly so his [amended] petition claims can be adjudicated
for the relief entitled[.]”
On July 30, 2018, “in accordance [with] the Order
Denying Rule 40 Petition for Post-Conviction Relief Without a
Hearing previously filed on May 3, 2018,” the circuit court
denied Lindsey’s motion to withdraw petition. Lindsey appealed.
2 Although the order disposing of Lindsey’s petition was titled “Order Denying Rule 40 Petition for Post-Conviction Relief Without a Hearing,” the circuit court explained that the petition was “patently frivolous and without a trace of support, either on the record, or from the evidence submitted[.]” HRPP Rule 40(g)(2) states that “[t]he court may dismiss a petition at any time upon finding the petition is patently frivolous[.]” (Emphasis added.) As such, we conclude that the circuit court dismissed Lindsey’s Rule 40 petition.
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B. ICA Proceedings
Lindsey argued that he was entitled to withdraw his
petition pursuant to HRPP Rule 40(e). He also contended that
the circuit court erred by dismissing the petition “for want of
particularity” without giving him “an opportunity to clarify the
petition” and that the circuit court’s dismissal of his petition
on May 3, 2018 deprived him of the opportunity to reply to the
State’s Response.
In its Answering Brief, the State first contended that
the ICA lacked appellate jurisdiction to review the dismissal of
Lindsey’s petition because Lindsey did not file his notice of
appeal until more than sixty days after the circuit court
dismissed his Rule 40 petition. Further, the State argued that
Lindsey’s claims of ineffective assistance of counsel and newly
discovered witnesses in the Rule 40 petition lacked a factual
basis.
Additionally, the State argued that “Lindsey does not
cite any authority that would give the circuit court the
discretion to allow the withdrawal of a Rule 40 petition that is
devoid of any factual allegations that would support a colorable
claim for relief.”
Lindsey filed a reply brief, contending that:
Respondent’s error was in claiming that Appellant was appealing the Circuit Court’s denial of his Rule 40 Petition. In fact, Appellant’s “Notice of Appeal” (like his O.B.) was addressing the solitary issue of the Circuit
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Court’s incorrect denial of his Motion to Withdraw Rule 40 Petition, which was filed on July 30, 2018, arrived at Saguaro Correctional Center on August 2, 2018, and received by Appellant on August 3, 2018.
(Emphasis added.)
In its SDO filed June 4, 2020, the ICA rejected the
State’s contention that it lacked appellate jurisdiction,
pointing out that Lindsey appealed the denial of his motion to
withdraw, not the dismissal of the petition itself. The notice
of appeal of the denial of the motion to withdraw was timely.
The ICA compared the use of the words “shall” and
“may” in HRPP Rule 40(e), and concluded that, while the circuit
court was required to grant leave to amend, granting withdrawal
was discretionary. As such, the ICA considered whether the
denial of Lindsey’s motion to withdraw his petition so that he
could amend it was an abuse of the circuit court’s discretion.
The ICA additionally recognized that Lindsey “had more than
seven months to request” that his petition be withdrawn, but he
had only done so ten days after the State filed its answering
brief, and one day after the circuit court dismissed his
petition. The ICA thus affirmed the circuit court’s order.
C. Application for Writ of Certiorari
Lindsey’s application for writ of certiorari contends
that the ICA erred in its interpretation of HRPP Rule 40(e).
Lindsey argues that he should have been permitted to withdraw
his petition in order to amend it pursuant to the language of
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the rule stating that “[a]mendment shall be freely allowed in
order to achieve substantial justice.”
The State did not file a response.
III. STANDARDS OF REVIEW
A. Denial of Rule 40 Petition Without a Hearing
“[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[.]” Dan v. State, 76 Hawai‘i 423, 427, 879
P.2d 528, 532 (1994) (quoting State v. Allen, 7 Haw. App. 89,
92, 744 P.2d 789, 792 (1987)). The question of whether a Rule
40 petition establishes a colorable claim is a question of law
that we review de novo. Id.
B. Denial of Motion to Withdraw Rule 40 Petition
HRPP Rule 40(e) states in relevant part, “The court
may grant leave to amend or withdraw the petition at any time.
Amendment shall be freely allowed in order to achieve
substantial justice.” Although we have not had occasion to
consider the standard of review of a court’s decision denying a
motion to amend or withdraw a Rule 40 petition, the language of
the rule suggests that granting a motion to withdraw is a matter
within the court’s discretion. Matters within the discretion of
the trial court are reviewed on appeal for abuse of discretion.
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See, e.g., Miyamoto v. Lum, 104 Hawai‘i 1, 6, 84 P.3d 509, 514
(2004) (noting that ruling on a motion for a new trial is within
the trial court’s discretion and that ruling will not be
disturbed absent a clear abuse of discretion).
IV. DISCUSSION
A. There is Typically No Error in Denying a Motion to Withdraw an HRPP Rule 40 Petition Filed After the Circuit Court Has Dismissed the Petition
Lindsey gave his motion to withdraw to prison
officials for mailing one day after the circuit court dismissed
his petition. This court has recognized that the “prison
mailbox rule” allows inmates’ filings to be considered filed as
of the date the inmate gives the filing to prison officials for
mailing to the court. Setala v. J.C. Penney Co., 97 Hawai‘i 484,
486-87, 40 P.3d 886, 888-89 (2002). Nonetheless, this rule is
of no help to Lindsey because the circuit court dismissed his
petition even before Lindsey handed his motion to withdraw the
petition to prison officials.
This court has not previously addressed whether a
“reverse” mailbox rule may offer a prisoner relief where, as
here, the petitioner had not previously learned of the circuit
court’s order dismissing his petition prior to filing his motion
to withdraw. Even if we were to recognize such a rule, however,
it would be immaterial to the outcome here because generally,
delayed delivery of mail to prisoners may only toll filing
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deadlines if the delay was caused by the prison. See United
States v. Fiorelli, 337 F.3d 282, 289 (3d Cir. 2003) (“[O]nly
delays caused by the prison warrant tolling of the filing
deadlines, and to the extent that the delay represents slow
mail, there is nothing that this Court can do to preserve an
appellant’s right to appellate review.” (quotation marks,
citation, and brackets omitted)); United States v. Grana, 864
F.2d 312, 316 (3d Cir. 1989) (“[W]e hold that in computing the
timeliness of pro se prisoners’ appeals, any prison delay in
transmitting to the prisoner notice of the district court’s
final order or judgment shall be excluded from the computation
of an appellant’s time for taking an appeal.” (emphasis added)).
The limitation on the reverse mailbox rule is both
sensible and fair; a litigant who is not incarcerated and who
does not use e-filing is also unlikely to learn of a court’s
order until notice arrives in the mail, likely several days
after the order is filed. In those circumstances, the litigant
would not be entitled to tolling of deadlines that began when
the court entered an order. Where a person’s incarceration
causes additional delays in receiving notice of a court’s order,
beyond normal mail schedules, that person may be entitled to
tolling or, as here, additional time after entry of a court’s
order to file a motion that would otherwise be moot. That is
not the situation in Lindsey’s case. Lindsey’s motion was filed
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the day after the court entered its order dismissing his
petition. His lack of notice of the court’s order cannot be
attributed to prison officials. Thus, Lindsey would not benefit
from a reverse mailbox rule even if we were to adopt it.
Generally speaking, it is not an abuse of discretion
for a court to deny a motion to withdraw a Rule 40 petition
after the petition has been dismissed. “Unless there is
prejudice to the state, a movant for postconviction relief is
entitled to withdraw a motion before it is ruled on.” 39 Am.
Jur. 2d Habeas Corpus § 168 (2021) (emphasis added). But after
the court rules on the petition, a motion to withdraw is moot.
Civil Beat L. Ctr. for the Pub. Int., Inc. v. City & Cnty. of
Honolulu, 144 Hawai‘i 466, 476, 445 P.3d 47, 57 (2019) (“A case
is moot if it has lost its character as a present, live
controversy of the kind that must exist if courts are to avoid
advisory opinions on abstract propositions of law.” (citation
omitted)). After ruling on a Rule 40 petition, there remains no
“present, live controversy” before the court, and the court
would be unable to effectuate the requested remedy of granting
leave to withdraw the petition.
B. The Circuit Court Erred by Dismissing Lindsey’s Petition Without First Providing Lindsey an Opportunity to Clarify His Petition
HRPP Rule 40(e) states that a petition shall not be
dismissed for want of particularity unless the petitioner is
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first given an opportunity to clarify the petition. Lindsey was
not provided an opportunity to clarify or amend his petition
prior to the circuit court’s May 3, 2018 order dismissing the
petition.
1. The motion to withdraw is best construed as a motion for reconsideration under the circumstances of this case
“[A]n appellant’s failure to file a timely notice of
appeal is a jurisdictional defect [that] can neither be waived
by the parties nor disregarded by the court in the exercise of
judicial discretion.” Bacon v. Karlin, 68 Haw. 648, 650, 727
P.2d 1127, 1129 (1986) (quotation marks and citation omitted)
(brackets in original). Lindsey’s notice of appeal states that
he appeals “from the decision and order denying petitioner’s
motion to withdraw petition for post-conviction relief without
prejudice[.]” The notice of appeal was timely filed within 30
days of the circuit court’s denial of Lindsey’s motion to
withdraw and was therefore timely.
Under the circumstances of this case, Lindsey’s motion
to withdraw should have been treated as a reconsideration
motion. Lindsey filed his motion to withdraw one day after the
circuit court dismissed his petition. Although styled as a
“motion to withdraw,” it specifically asked for the opportunity
to “formulate . . . an [amended] petition correctly so his
[amended] petition claims can be adjudicated for the relief [to
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which he is] entitled[.]” Lindsey’s original petition likewise
explained that he intended to amend the petition with the help
of court-appointed counsel. When the motion was filed, the
court had already dismissed Lindsey’s petition, concluding that
the petition was “patently frivolous and without a trace of
support, either on the record, or from the evidence submitted”;
in light of this disposition, a fair reading of Lindsey’s
request to withdraw his petition was that Lindsey was asking the
court to reconsider its decision to summarily dismiss the
petition for a lack of factual support. Thus, because Lindsey’s
original petition contemplated developing the facts at a later
time, and the motion to withdraw specifically asked for the
opportunity to reformulate his claims, Lindsey’s motion should
have been interpreted liberally by the circuit court as a
reconsideration motion. See Dupree v. Hiraga, 121 Hawai‘i 297,
314, 219 P.3d 1084, 1101 (2009) (“[Filings] prepared by pro se
litigants should be interpreted liberally.”).
2. The circuit court erred by dismissing the petition without giving Lindsey an opportunity to clarify
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[.]” Dan, 76 Hawai‘i at 427, 879 P.2d at 532
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(quoting Allen, 7 Haw. App. at 92, 744 P.2d at 792). Moreover,
“[n]o petition shall be dismissed for want of particularity
unless the petitioner is first given an opportunity to clarify
the petition.” HRPP Rule 40(e). “If the court considered [the
petitioner’s] statements unclear or lacking in detail, HRPP Rule
40(e) requires the court to give the petitioner an opportunity
to clarify the petition prior to dismissing it for want of
particularity.” Fagaragan v. State, 132 Hawai‘i 224, 236, 320
P.3d 889, 901 (2014) (footnote omitted).
Lindsey’s petition was bare-bones and contained no
factual allegations to support the claim of ineffective
assistance of counsel, specifying only that he intended to amend
it later with the help of legal counsel. Lindsey’s
concurrently-filed motion for appointment of counsel explained
that Lindsey believed counsel would “better enable” him to
prepare his case.
The State argued that Lindsey was given sufficient
time to amend his petition. However, Lindsey’s petition and his
motion for appointment of counsel evinced Lindsey’s intent to
first have counsel appointed before amending his petition. It
is thus reasonable to assume that Lindsey had not sought
amendment during the seven months that elapsed prior to the
State filing its answer to Lindsey’s petition because Lindsey
was waiting until the circuit court first ruled on his motion
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for appointment of counsel. Because Lindsey’s petition
expressly stated that he “desired review” by court-appointed
counsel before amending the petition to contain specific facts
about his claim, the State’s argument that Lindsey was given a
sufficient amount of time to amend is unpersuasive. 3
The State additionally argued that Lindsey’s petition
“failed to allege any facts” – in other words, that the lack of
particularity warranted dismissal. And the circuit court’s
order dismissing the petition stated only that Lindsey’s
petition was frivolous and without support in the record, giving
no other reasoning. Thus, we can fairly infer that the circuit
court’s dismissal was for want of particularity.
Pursuant to Rule 40(e), the circuit court should have
given Lindsey an opportunity to clarify the factual allegations
in the petition before dismissing it. Taking into account the
circumstances of Lindsey’s petition, it was error not to do so.
Lindsey had informed the court that he was waiting on the
disposition of his motion for appointment of counsel before
amending the petition to contain more specific facts.
Additionally, once Lindsey received the State’s answer to his
petition, Lindsey filed - albeit after the Court filed its order
3 Whether the circuit court would have appointed counsel pursuant to HRPP Rule 40(i) is not dispositive here; it is clear that Lindsey was waiting for the circuit court’s disposition of his motion for appointment of counsel before amending his petition.
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dismissing his petition and denying his motion for court-
appointed counsel - the motion to withdraw the petition, which
contended that he “need[ed] to formulate in an [amended]
petition” the facts supporting his claims. It is clear that
Lindsey intended to amend his petition to provide the factual
basis of his claim, and the circuit court thus erred in
dismissing his petition without first giving Lindsey the
opportunity to do so. Accordingly, Lindsey’s motion, which
asked the circuit court for the opportunity to reformulate his
petition to develop the facts, should have been granted.
V. CONCLUSION
In sum, we hold that the circuit court’s May 3, 2018
order dismissing Lindsey’s petition for post-conviction relief
was premature. The circuit court failed to provide Lindsey with
an opportunity to clarify his petition prior to its order
dismissing the petition, as required by HRPP Rule 40(e). Under
the circumstances of this case, the motion to withdraw, which
should have been construed as a motion to reconsider the circuit
court’s dismissal of Lindsey’s petition, should have been
granted.
Accordingly, we vacate the ICA’s July 7, 2020 judgment
on appeal, and the circuit court’s July 30, 2018 order denying
petitioner’s motion to withdraw petition for post-conviction
relief without prejudice. We remand to the circuit court for
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further proceedings consistent with this order.
DATED: Honolulu, Hawai‘i, June 28, 2021.
Jerrico Lindsey, /s/ Mark E. Recktenwald petitioner pro se /s/ Paula A. Nakayama Brian R. Vincent for respondent /s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Catherine H. Remigio