Andrew Kamana'o v. Clayton Frank , 450 F. App'x 631 ( 2011 )

FILED
NOT FOR PUBLICATION SEP 20 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANDREW K. KAMANA’O, No. 10-16041
Petitioner - Appellant, D.C. No. 1:09-cv-00313-JMS-
BMK
v.
CLAYTON FRANK; et al., MEMORANDUM *
Respondents - Appellees.
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, District Judge, Presiding
Argued and Submitted June 14, 2011
Honolulu, Hawaii
Before: ALARCÓN, WARDLAW, and N.R. SMITH, Circuit Judges.
Andrew K. Kamana’o, a Hawaii state prisoner, appeals from the district
court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. The district court granted a certificate of appealability (“COA”) on the
question “whether Bouie [v. City of Columbia, 378 U.S. 347 (1964),] applies to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. Rule. 36-3.
retroactive sentence enhancements or sentencing schemes.” Kamana’o also
contends that the Hawaii Supreme Court’s decision denying his state petition for a
writ of habeas corpus, State v. Kamanao, 188 P.3d 724 (Haw. 2008), was “contrary
to or an unreasonable application of federal law clearly establishing that an illegal
sentence is unconstitutional.”. We decline to grant a COA as to this uncertified
issue.
I
Kamana’o contends that the Hawaii Supreme Court’s decision in Kamana’o,
188 P.3d 724, was contrary to or an unreasonable application of clearly established
federal law, as determined by the Supreme Court in Bouie v. City of Columbia, 378
U.S. 347 (1964). He also claims that this court applied Bouie to a state sentencing
statute in Oxborrow v. Eikenberry, 877 F.2d 1395, 1399-400 (9th Cir. 1989).
Kamana’o has failed to demonstrate that Bouie’s applicability to sentencing
schemes is “clearly established.” In Holgerson v. Knowles, 309 F.3d 1200 (9th
Cir. 2002), we previously explained that “the Supreme Court has not decided
whether the due process fair warning requirement outlined in Bouie applies to
after-the-fact sentence increases.” Id. at 1203. In that matter, we stated “[w]e need
not decide whether Bouie applies” to after-the-fact increases in punishment
because that issue “has not been clearly established by the Supreme Court.” Id.2
This court’s decision in Oxborrow is not controlling because it predates
Congress’s enactment of the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214. The state petitioner’s
“reliance on Ninth Circuit or other circuit authority is misplaced” in this matter
because the relevant issue in this case is whether the Hawaii Supreme Court’s
decision “was ‘contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court.’” Arredondo v.
Ortiz, 365 F.3d 778, 782 (9th Cir. 2004) (emphasis in original) (quoting 28 U.S.C.
§ 2254(a)(1)).
Given that Kamana’o has not established that Bouie applies to the sentencing
scheme in this case, we need not reach the merits of whether the sentence
Kamana’o received upon his resentencing in 2006 was foreseeable.
II
Kamana’o also asserts that this court “may disregard the [Hawaii Supreme
Court’s] construction of state law in [Kamana’o, 188 P.3d 724,] because it is
implausible and an obvious subterfuge to evade recognizing the merit in
Kamana’o’s federal claims . . . .” Although the district court declined to certify
this issue, we consider Kamana’o’s request to broaden the COA pursuant to Circuit
Rule 22-1.
3
Under AEDPA, the issuance of a COA is a prerequisite to the right to bring
an appeal. 28 U.S.C. § 2253(c)(1). The petitioner must make “a substantial
showing of the denial of a constitutional right” for a COA to issue. § 2253(c)(2).
“The required showing for originally obtaining a COA on a claim remains the
standard by which this court reviews the broadening of a COA.” Doe v. Woodford,
508 F.3d 563, 567 (9th Cir. 2007).
“[A] state court’s interpretation of state law . . . binds a federal court sitting
in habeas corpus” unless the state court’s decision presents a violation of the
Constitution or the laws or treaties of the United States. Bradshaw v. Richey, 546
U.S. 74, 75 (2005); see Swarthout v. Cooke, 131 S. Ct. 859 (2011) (extent of
liberty interest in parole is a question of state law, which is reviewable by a federal
court only for a violation of the Due Process Clause). “Our deference to the [state
court] is suspended only upon a finding that the court’s interpretation is untenable
or amounts to a subterfuge to avoid federal review of a constitutional violation.”
Oxborrow, 877 F.2d at 1399 (emphasis added). We decline to grant a COA in this
matter because a substantial showing has not been made that the Hawaii Supreme
Court’s decision was untenable or a subterfuge to avoid applying federal
constitutional law.
AFFIRMED.
4