Stangel v. Wead

677 F.Supp.3d 1141

Toby STANGEL, Petitioner, v. Warden Shawn WEAD, Respondent.

CIV. NO. 22-00067 JMS-KJM

United States District Court, D. Hawai'i

Signed June 15, 2023

Robert J. Christensen, Robert J. Christensen Attorney at Law, Kilauea, HI, for Petitioner.

Loren J. Thomas, Office of the Prosecuting Attorney C & C of Honolulu, Honolulu, HI, for Respondent.

ORDER DENYING PETITION UNDER 28 U.S.C. § 2254, ECF NO. 1, AND ISSUING CERTIFICATE OF APPEALABILITY

J. Michael Seabright, United States District Judge

I. INTRODUCTION

On February 14, 2022, Petitioner Toby Stangel ("Petitioner" or "Stangel"), proceeding pro se,¹ filed a "Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody." ECF Nos. 1, 1-1.² Stangel alleges that his federal constitutional rights were violated during his criminal conviction and subsequent appeals in Hawaii state courts, claiming violations of (1) his Sixth Amendment right to effective assistance of counsel and (2) a due process right under the Fourteenth Amendment to call witnesses in support of his defense. ECF No. 1 at PageID.5-7. Stangel also alleges that he improperly received consecutive life sentences based on a consideration of a dismissed criminal charge, in violation of his right to due process. Id. at PageID.8.

As explained to follow, Stangel's claims are almost all procedurally barred under applications of adequate and independent Hawaii procedural law. See Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The claims that are not procedurally barred fail on the merits as they do not involve "an unreasonable application of [ ] clearly established Federal law, as determined by the Supreme Court of the United States" or did not "result[ ] in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," as required by 28 U.S.C. § 2254(d)(1) & (2). The court thus DENIES the Petition because Stangel is not being held in violation of the Constitution, laws, or treaties of the United States.

The court issues a certificate of appealability as to only one issue—whether Stangel was denied a federal right to present a complete defense by the Hawaii trial court's exclusion of proffered defense expert witness Dr. Marvin Acklin given State v. Abion, 148 Haw. 445, 478 P.3d 270 (2020), which was issued while state collateral review proceedings were pending. See R. 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts ("Section 2254 Rules") (requiring the district court to issue or deny a certificate of appealability when entering a final order adverse to a § 2254 applicant).

II. BACKGROUND

A. The Crime, Conviction, and Initial Sentencing in the State Trial Court

As broadly summarized by the Hawaii Intermediate Court of Appeals ("ICA"), this case arises from the following events:

On June 3, 2011, beginning at about 12:30 a.m., Stangel fired several shots at motorists stopped at the intersection of Kapiolani Boulevard and Waialae Avenue. Stangel shot at Michael Pagdilao three times. Stangel shot and killed Tammy Nguyen in front of her teenaged daughter, Cindy Nguyen, discharging nine shots. Stangel drove onto the H-1 Freeway in a westbound direction and, near the Likelike offramp, shot at Amie Lou Ascuncion three times, hitting her once in the back. Stangel shot Samson Naupoto, who attempted to help Amie Lou Ascuncion, once in the leg. Proceeding further west on the Moanalua Freeway by the H-1 off-ramp, Stangel fired four or five shots at HPD Officers Robertson and Ogasawara, who were supporting a traffic stop. Stangel was eventually apprehended near the Kaamilo Street overpass on the H-1 Freeway.

ECF No. 10-18 at PageID.535-36; Stangel v. State, 149 Haw. 208, 485 P.3d 1120, 2021 WL 1819821, at *1 (Haw. Ct. App. May 6, 2021) (mem.) ("Stangel II") (quoting State v. Stangel, 2015 WL 836928 (Haw. Ct. App. Feb. 26, 2015 (mem.) ("Stangel I")).

On June 8, 2011, Stangel was indicted on 20 counts in violation of various Hawaii criminal statutes. See ECF No. 10-7 (Stangel I, 2015 WL 836928, at *1). On May 16, 2013, Stangel was convicted in the Circuit Court of the First Circuit of the State of Hawaii ("First Circuit Court" or "trial court") of one count of murder in the second degree and two counts of attempted murder in the second degree, along with other counts for reckless endangering and for various firearms-related violations. See ECF No. 1 at PageID.24-25; ECF No. 10-3 at PageID.97.

On August 14, 2013, the First Circuit Court sentenced Stangel to three consecutive terms of life imprisonment with the possibility of parole, with mandatory minimums of 20 years imprisonment for each consecutive term.³ ECF No. 10-3 at PageID.99. Throughout his trial and sentencing, Stangel was represented by attorney John Schum. See ECF No. 1 at PageID.13; ECF No. 10-3 at PageID.97.

B. Direct Appeal from Conviction and Initial Sentencing

Stangel—through his appellate counsel, the State of Hawaii Office of the Public Defender ("OPD")—appealed his conviction and sentence to the ICA, arguing that the trial court erred in five ways:

(1) "Precluding the Expert Testimony of Dr. Acklin," a forensic psychologist and Stangel's expert witness;

(2) "Failing to Give the Jury an Instruction Under [Hawaii law] on the Possible Merger of the Firearms Charges and Mandatory Minimum Sentences Under [Hawaii law]";

(3) "Failing to Include the Requisite State of Mind Element for the Special Interrogatories Given to the Jury";

(4) "Considering Stangel's Suppressed Statements at Sentencing," in violation of "the Due Process Clauses of the [Hawaii] and Federal Constitutions"; and

(5) "Unconstitutionally Punish[ing] Stangel By Improperly Considering an Unsubstantiated Allegation of Misconduct Against Him and Sentencing Him to Consecutive Terms of Imprisonment."

ECF No. 10-4 at PageID.133-52. All but the second point of error, in addition to state law, also included references or relied upon federal law. See id.; see also ECF No. 10-6.

The ICA issued a memorandum opinion on February 26, 2015, rejecting all of Stangel's points of errors except for the fifth. ECF No. 10-7 (Stangel I, 2015 WL 836928, at *1). The first claim—regarding the exclusion of Dr. Acklin's testimony—becomes important for purposes of federal habeas review, and the court analyzes the trial court's ruling for that claim in much more detail later in this Order. The ICA upheld Stangel's conviction but vacated the consecutive terms of life imprisonment (agreeing with Stangel that the trial court improperly considered uncharged and unsubstantiated conduct in imposing consecutive sentences) and remanded to the trial court for resentencing. Id. at PageID.271 (Stangel I, 2015 WL 836928, at *14). Stangel sought to appeal the unfavorable aspects of the ICA's decision by filing an Application for Writ of Certiorari with the Hawaii Supreme Court on May 27, 2015. ECF No. 10-8. The Hawaii Supreme Court rejected the application on July 9, 2015. ECF No. 10-10.

C. Resentencing in the State Trial Court

On remand, on March 23, 2016, the trial court (through a different judge) issued an Amended Judgment of Conviction and Sentence that again sentenced Stangel to three consecutive terms of life imprisonment with the possibility of parole, with mandatory minimums of 20 years' imprisonment for each consecutive term. ECF No. 10-11 at PageID.360. Stangel was again represented by attorney John Schum during resentencing. See id. at PageID.358. Stangel did not appeal his resentencing, id., and thus the judgment on his conviction and sentence became final for purposes of post-conviction relief under Hawaii Rule of Penal Procedure ("HRPP") 40(a)(1).⁴

D. State Court Post-Conviction Challenge (Rule 40 Petition)

After judgment became final, Stangel sought post-conviction relief through a pro se Petition under HRPP 40. See ECF No. 10-12 ("Rule 40 Petition"). Stangel filed his Rule 40 Petition on November 29, 2016, arguing that his conviction and sentence should be vacated on the following five grounds (among others):

(1) he was provided ineffective assistance of counsel by his trial counsel, John Schum, because Mr. Schum failed to take certain actions during Stangel's criminal trial;

(2) the trial court erred by excluding Dr. Acklin's expert testimony; (3) the trial court erred by preventing the remainder of Stangel's trial witnesses from testifying;

(4) the trial court erred by failing to give jury instructions on a defense of Extreme Mental and Emotional Distress ("EMED"); and

(5) the trial court erred in the initial sentencing by "issuing [Stangel] a sentence of three (3) life terms, each with a mandatory minimum of twenty (20) years, to be run consecutively to each other, . . . [based] on two erroneous findings."⁵

Id. at PageID.378-85; ECF No. 10-14 at PageID.428. Stangel primarily referenced or relied upon federal law when asserting those grounds in his Rule 40 Petition. See ECF No. 10-12 at PageID.378-85.

The First Circuit Court dismissed Stangel's Rule 40 Petition on December 29, 2017. ECF No. 10-14. For the first ground, the court determined that Stangel had waived his ineffective-assistance-of-counsel claim by not raising it on direct appeal to the ICA. Id. at PageID.430 (applying HRPP 40(a)(3)⁶). Similarly, the court concluded that Stangel had waived his third ground (erroneous exclusion of trial witnesses) by not raising that claim of error with the ICA on direct appeal. Id. at PageID.431 (applying HRPP 40(a)(3)). As for the second ground (erroneous exclusion of Dr. Acklin's testimony) and as for the fourth ground (improper sentencing), the First Circuit Court recognized that those grounds of error had been "previously ruled upon" by the ICA, precluding further review under HRPP 40(a)(3). Id. at PageID.431, 433.

On January 24, 2018, Stangel appealed the dismissal of his Rule 40 Petition to the ICA. See ECF No. 10-18 at PageID.538 n.4. As to ineffective...