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Libero v. State

INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI'I
May 26, 2017
NO. CAAP-16-0000528 (Haw. Ct. App. May. 26, 2017)

Opinion

NO. CAAP-16-0000528

05-26-2017

JAMES K. LIBERO, Petitioner-Appellant, v. STATE OF HAWAI'I, Respondent-Appellee

On the briefs: James K. Libero, Pro Se Petitioner-Appellant. Peter A. Hanano, Deputy Prosecuting Attorney, County of Maui, for Respondent-Appellee.


NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(S.P.P. NO. 16-1-0005(2); CR. NO. 98-0697(2)) SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., and Leonard and Reifurth, JJ.)

Petitioner-Appellant James K. Libero appeals from the Findings of Fact, Conclusions of Law, and Judgment Denying Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody, filed on July 6, 2016 in the Circuit Court of the Second Circuit ("Circuit Court").

The Honorable Peter T. Cahill presided.

On October 4, 2000, Libero was convicted of Attempted Murder in the Second Degree, Assault in the First Degree, and Attempted Sexual Assault in the First Degree. On direct appeal, this court affirmed Libero's convictions for Attempted Murder in the Second Degree and Assault in the First Degree, but reversed the conviction for Attempted Sexual Assault in the First Degree. State v. Libero, 103 Hawai'i 490, 507 83 P.3d 753, 770 (App. 2003), cert. denied, 103 Hawai'i 479, 83 P.3d 742 (2004).

Between August 23, 2001 and February 20, 2013, Libero filed eight petitions for relief pursuant to Rule 40 of the Hawai'i Rules of Penal Procedure. The first petition was denied because his direct appeal was still pending before this court. The subsequent seven petitions were also denied.

On April 21, 2016, Libero filed a Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody ("Ninth Petition"). On July 6, 2016, the Circuit Court issued Findings of Fact, Conclusions of Law, and Judgment Denying Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody, which denied Libero's Ninth Petition.

On appeal, Libero argues that if, as the prosecution claimed, he used a kiawe branch to assault the victim, there would have been "D.N.A. evidence from the victim and probably from Mr. Libero embedded within the branch. The absence of no [sic] D.N.A. on the kiawe branch contradicts certin [sic] prosecution testimony used to convict Mr. Libero and supports his contention that he should have a new trial." Libero also requests that "all the missing evidence" in the case be tested for D.N.A.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Libero's point of error as follows and affirm.

Libero's contention that "[t]his issue is not about raised or ruled upon or waived[,] . . . [but] about the truth that the state prosecution attorney wants to have the courts to be blinded" (emphasis added) notwithstanding, his claim regarding the lack of D.N.A. evidence on the kiawe branch was previously raised and ruled upon in his second and sixth petitions. In addition, Libero raised the issue in his eighth petition, which was also denied. State v. Libero, No. CAAP-13-0000415, 2015 WL 3384440, at *1 (Haw. App. May 22, 2015).

For the first time on appeal, Libero requests additional testing of evidence for D.N.A. Libero failed to request that the Circuit Court order additional testing of evidence in the Ninth Petition. Therefore, Libero's request is denied without prejudice to a post-conviction petition, in accordance with Hawaii Revised Statutes Chapter 844D, Part XI.

To the extent that Libero's appeal can be construed to assert any other point of error on appeal, Libero failed to prove the existence of extraordinary circumstances to justify his failure to raise the issue in eight prior petitions for relief. Therefore, relief is not available. Haw. R. Penal P. 40(a)(3).

Therefore, IT IS HEREBY ORDERED that the Findings of Fact, Conclusions of Law, and Judgment Denying Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody, filed on July 6, 2016 in the Circuit Court of the Second Circuit is affirmed.

DATED: Honolulu, Hawai'i, May 26, 2017. On the briefs: James K. Libero, Pro Se Petitioner-Appellant. Peter A. Hanano, Deputy Prosecuting Attorney, County of Maui, for Respondent-Appellee.

/s/

Chief Judge

/s/

Associate Judge

/s/

Associate Judge


Summaries of

Libero v. State

INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI'I
May 26, 2017
NO. CAAP-16-0000528 (Haw. Ct. App. May. 26, 2017)
Case details for

Libero v. State

Case Details

Full title:JAMES K. LIBERO, Petitioner-Appellant, v. STATE OF HAWAI'I…

Court:INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI'I

Date published: May 26, 2017

Citations

NO. CAAP-16-0000528 (Haw. Ct. App. May. 26, 2017)