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McClintock v. State

United States District Court, D. Hawaii

August 1, 2019

KENNETH L. MCCLINTOCK, JR., Petitioner,
v.
STATE OF HAWAII, Respondent.

          ORDER (1) DISMISSING PETITION UNDER 28 U.S.C. § 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY; AND (2) DENYING CERTIFICATE OF APPEALABILITY

          J. Michael Seabright Chief United States District Judge

         I. INTRODUCTION

         Before the court is pro se Petitioner Kenneth L. McClintock, Jr.'s (“McClintock” or “Petitioner”) “Writ of Habeas Corpus, Motion for 704-404 Evaluation, Letter to Defense Council [sic], ” which the court construes as a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“Petition”). ECF No. 1. Petitioner claims that Respondent State of Hawaii (the “State”) has violated his constitutional rights by denying him due process in connection with court hearings concerning his temporary commitment to the Hawaii State Hospital (“HSH”) and subjected him to “cruel punishment” in connection with his Order of Conditional Release, entered in conjunction with his Judgment of Acquittal, in State v. McClintock, Cr. No. 1PC131000590.[1]Petitioner seeks a court order releasing him from the HSH and discharging him from the Order of Conditional Release.

         Because it plainly appears from the face of the Petition that Petitioner's claims are unexhausted, the Petition and this action are DISMISSED without prejudice pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.[2] Any request for a certificate of appealability is DENIED.

         II. BACKGROUND

         A. Factual Background

         On December 23, 2014, Petitioner was found not guilty by reason of insanity and a Judgment of Acquittal and Conditional Release was entered in the State of Hawaii Circuit Court of the First Circuit. See http://jimspss1.courts.state. hi.us:8080/eCourt/ECC/CaseSearch.iface (“e-Court Kokua”) (12/23/2014) (last visited Aug. 1, 2019).[3] On February 13, 2019, Petitioner was taken into custody for allegedly violating his conditional release, and is being held temporarily at the HSH pending further state-court hearings. See Id. According to the docket, the pending hearings are to address both conditional release reviews and the State's motion to revoke Petitioner's conditional release. Id. The next review hearing is scheduled for August 13, 2019. Id.

         Meanwhile, on March 25, 2019, Petitioner filed the instant Petition alleging that the original June 13, 2013 motion for a mental examination, brought pursuant to Hawaii Revised Statutes (“HRS”) § 704-404, is invalid and therefore, “all subsequent actions [are] invalid and unlawful.” ECF No. 1 at PageID #1-2. That is, Petitioner contends that because the motion for a mental examination was allegedly defective, the resulting Order of Conditional Release is invalid. Petitioner further contends that because “conditional release is indefinite, ” it is “a cruel punishment.” Id. at PageID #14. Petitioner alleges that he has not been able to challenge these matters “due to the disfunctional [sic] nature of circuit court.” Id. at PageID #2.

         Further, Petitioner alleges that since February 13, 2019, he has “had 4 revocation [of conditional release] hearings, ” but he has “not been present at a single one.” Id. at PageID #7. More specifically, Petitioner alleges that despite his requests to be physically present in the courtroom for such hearings, “they had a video hearing and [he] did not attend.” Id. at PageID #10.[4] Petitioner contends that because he can neither speak to his counsel nor read the doctor's report during video hearings, such hearings violate his right to due process. Id. at PageID #11. Petitioner's current counsel allegedly “refuses to file an appeal” because Petition “do[es] not have a right to be in the courtroom.” Id. at PageID #11-12.

         As a result, Petitioner claims that the State has denied him due process in connection with court hearings regarding his custody and commitment to the HSH and subjected him to cruel punishment in connection with the Order of Conditional Release. Petitioner seeks an order releasing him from the HSH and discharging him from the Order of Conditional Release. See Id. at PageID #14.

         B. Procedural Background

         Petitioner filed the instant Petition on March 25, 2019. ECF No. 1. The State filed a Response on June 3, 2019, asserting that Petitioner failed to exhaust state remedies, and a Supplemental Response on June 5, 2019. ECF Nos. 6-7. Petitioner filed Replies on June 12 and 14, 2019. ECF Nos. 8-9. Pursuant to Local Rule 7.2(d), the court finds this matter suitable for disposition without a hearing.

         III. LEGAL STANDARDS

         Rule 4 of the Rules Governing Section 2254 Cases (Habeas Rule 4) requires the court to dismiss a habeas petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” A federal district court may consider a habeas petition from a state petitioner “only on the ground that he is in custody in violation of the Constitution or law or treaties of the United States.” 28 U.S.C. § 2254(a). And as a matter of comity, a federal court will not entertain a habeas petition unless the petitioner has exhausted the available state remedies on every ground presented, either through direct appeal or collateral proceedings. See 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 & n.7 (1982). The comity doctrine is codified in the habeas statute, which provides that habeas relief shall not be granted unless the petitioner has (1) “exhausted” the available state court remedies, (2) shown that there is an “absence of available State corrective process, ” or (3) shown that “circumstances exist that render such process ineffective to ...


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