United States District Court, D. Hawaii
KENNETH L. MCCLINTOCK, JR., Petitioner,
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
Michael Seabright Chief United States District Judge
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.Petitioner seeks a court order releasing
him from the HSH and discharging him from the Order of
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. Any request for a certificate of
appealability is DENIED.
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.
Kokua”) (12/23/2014) (last visited Aug. 1,
2019). 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.
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
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. 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.
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.
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.
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 ...