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Michael C. Tierney v. State of Hawaii

March 20, 2013

MICHAEL C. TIERNEY,
PETITIONER,
v.
STATE OF HAWAII, RESPONDENT.



ORIGINAL PROCEEDING ORDER

(By: Recktenwald, C.J., Nakayama, Acoba, McKenna, and Pollack, JJ.)

Upon consideration of petitioner Michael C. Tierney's "Motion for Release Pending Disposition of Post Conviction Petition Rule 40 [HRAP 23]", filed on March 4, 2013, which we review as a petition for a writ of mandamus, and the document attached thereto and submitted in support thereof, it appears that petitioner is not entitled to the requested relief. Petitioner fails to demonstrate that the State of Hawaii owes him a duty to release him from custody and provide him gate money and clothes pending the disposition of his HRPP Rule 40 proceeding and petitioner has alternative means to seek relief. See Kema v. Gaddis, 91 Hawaii 200, 204, 982 P.2d 334, 338 (1999) (a writ of mandamus is an extraordinary remedy that will not issue unless the petitioner demonstrates a clear and indisputable right to relief and a lack of alternative means to redress adequately the alleged wrong or obtain the requested action); Barnett v. Broderick, 84 Hawaii 109, 111, 929 P.2d 1359, 1361 (1996) (mandamus relief is available to compel an official to perform a duty allegedly owed to an individual only if the individual's claim is clear and certain, the official's duty is ministerial and so plainly prescribed as to be free from doubt, and no other remedy is available). Accordingly, IT IS HEREBY ORDERED that the clerk of the appellate court shall process the petition for a writ of mandamus without payment of the filing fee.

IT IS HEREBY FURTHER ORDERED that the petition for a writ of mandamus is denied.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Simeon R. Acoba, Jr. /s/ Sabrina S. McKenna /s/ Richard W. Pollack

20130320

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