APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 09-1-2668)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Fujise and Ginoza, JJ.)
Plaintiff-Appellant Myman O.K. Sparks (Sparks), pro se, appeals from the Order of Dismissal of his "Motion to Proceed with the Common Law of the Hawaiian Islands L1892 Chapter LVII, Section 5," (Motion) filed November 17, 2009 in the Circuit Court of the First Circuit (circuit court).*fn1
On appeal, Sparks contends, inter alia, that the circuit court improperly dismissed his Motion, in which he had petitioned for a writ of habeas corpus. In its Order of Dismissal, the court stated that "Writs of Habeas Corpus have been abolished in the State of Hawaii in favor of Hawai[']i Rules of Penal Procedure [(HRPP)] Rule 40 petitions." The court dismissed the petition without prejudice to the filing of a Rule 40 petition.
In his Motion, Sparks sought post-conviction relief based on his belief that he was illegally confined. Habeas corpus proceedings are encompassed within HRPP Rule 40. HRPP Rule 40(a). We review the denial of an HRPP Rule 40 petition de novo. See State v. De Guair, 108 Hawaii 179, 187, 118 P.3d 662, 670 (2005).
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 Sparks's appeal as follows:
Rather than dismissing Sparks's Motion on the basis that writs of habeas corpus have been abolished in favor of HRPP Rule 40 petitions, the circuit court should have treated Sparks's Motion as an HRPP Rule 40 nonconforming petition. Turner v. Hawaii Paroling Authority, 93 Hawaii 298, 306-07, 311, 1 P.3d 768, 776-77, 781 (App. 2000); HRPP Rule 40(c)(2). HRPP Rule 40(c)(2) sets out the criteria for the court to consider a nonconforming petition:
(2) Nonconforming Petition . Where a post-conviction petition deviates from the form annexed to these rules, it shall nevertheless be accepted for filing and shall be treated as a petition under this rule provided that the petition (i) claims illegality of a judgment or illegality of "custody" or "restraint" arising out of a judgment, (ii) is accompanied by the necessary filing fee or by a well-founded request to proceed without paying filing fees, and (iii) meets minimum standards of legibility and regularity.
Sparks's Motion meets the criteria for a nonconforming petition under HRPP Rule 40(c)(2). The Motion: (i) claims that Sparks is being held illegally by the State of Hawaii pursuant to judgments in three criminal cases; (ii) Sparks submitted a Request To Proceed Without Paying Filing Fees, which was belatedly approved by the circuit court; *fn2 and (iii) the Motion met minimum standards of legibility and regularity.
The rule further provides the procedure for the court to follow in handling a nonconforming petition under HRPP Rule 40:
When treating a nonconforming petition as a petition under this rule, the court shall promptly clarify by written order that the requirements of this rule apply and, if the information in the petition is incomplete, may require the petitioner to file a supplemental petition in the form annexed to these rules before requiring the state to respond.
HRPP Rule 40(c)(2). Thus, the circuit court may address any missing information in the nonconforming petition by entering an order instructing Sparks to ...