Lindsey v. State

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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-
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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

“[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, 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

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