United States District Court, D. Hawaii
WILLIAM M. GILROY, by and through his NEXT FRIEND, M. NOILANI MASON, Petitioner,
THE KONA COMMUNITY HOSPITAL BEHAVIORAL HEALTH AUTHORITIES, RICHARD MCDOWELL, STATE OF HAWAII DEP'T OF HEALTH, Respondents.
ORDER DISMISSING PETITION AND DENYING A CERTIFICATE
Derrick K. Watson, United States District Judge.
the court is Petitioner William M. Gilroy's
(“Petitioner”) Petition for Writ of Habeas
Corpus, brought by and through his fiancee, M. Noilani Mason
(“Mason”), as putative “Next Friend.”
See Pet., ECF No. 1. Respondent the State of Hawaii
Department of Health (“DOH”) has filed a Response
to the Petition. ECF No. 19.
following reasons, the Petition is DISMISSED for lack of
jurisdiction, and this action is terminated. Any request for
a certificate of appealability is DENIED.
November 21, 2018, Petitioner was charged with twenty-nine
counts of the Unauthorized Practice Of Law in State v.
Gilroy, 3CPC-18-1-0000893 (Haw. 3d Cir. Ct.), pursuant
to Hawaii Revised Statutes (“HRS”) §§
605-14, 605-15, and 605-17. Response to Pet., ECF No. 19 at
10, 2019, the Circuit Court of the Third Circuit
(“circuit court”) referred Petitioner to the
Adult Client Services Branch of the Department of Health
(“DOH”) for a mental health examination and
determination of fitness to proceed in 3CPC-18-1-0000893,
pursuant to Haw. R. Stats. § 704-404.
September 18, 2019, after the completion of Petitioner's
mental health examination and based on that report, the
circuit court found Petitioner unfit to proceed to trial and
suspended the proceedings in 3CPC-18-1-0000893. See
Resp't Ex. A, ECF No. 19-1 (“Order Finding
Defendant Unfit to Proceed, Suspending Proceedings,
Committing Defendant to the Custody of the Director of
Health, for Placement Pending Transport and for
Transport”). The circuit court committed Petitioner to
the custody of the DOH for 120 days for appropriate placement
and care and ordered that, if Petitioner did not regain
fitness to proceed within that period, the criminal charges
in 3CPC-18-1-0000893 would be dismissed and Petitioner will
be “released from custody.” Id. at 124.
Petitioner has been committed to the Kona Community
Hospital's Behavioral Health Unit (“BHU”),
also known as Kalani Ola, since that time. His 120-day
commitment expires on January 16, 2020.
October 11, 2019, Mason filed the Petition seeking
Petitioner's release from the BHU. ECF No. 1. Mason
alleges that Petitioner is being held in violation of the
United States Constitution because his ability to use the
telephone and receive visitors is limited and subject to
approval by BHU medical staff. Mason states that Petitioner
has invoked his Fifth Amendment right against
self-incrimination and has refused to speak with BHU
psychiatrist Michael McGrath, M.D. Since filing the Petition,
Mason and Petitioner have filed nine supplemental
documents, several of which are signed and written by
Petitioner, not Mason.
filed a Response on January 3, 2020. ECF No. 19. DOH argues
that (1) Mason may not proceed as Petitioner's next
friend because she is neither an attorney nor
Petitioner's legally recognized representative or
guardian; and (2) the Petition fails to allege any colorable
ground for relief.
STANDARD OF REVIEW
Court may entertain a petition for writ of habeas corpus from
a person claiming to be “in custody in violation of the
Constitution or laws or treaties of the United States.”
28 U.S.C. § 2241(c)(3). A district court considering an
application for a writ of habeas corpus shall “award
the writ or issue an order directing the respondent to show
cause why the writ should not be granted, unless it appears
from the application that the applicant or person detained is
not entitled thereto.” 28 U.S.C. § 2243.
Petitioner has not been convicted and is not in custody
pursuant to a state court judgment, the Court construes the
Petition as brought pursuant to 28 U.S.C. § 2241.
See Hoyle v. Ada Cty., 501 F.3d 1053, 1058 (9th Cir.
2007) (holding § 2241 is the appropriate vehicle for
pretrial detainee's challenge to detention); Stow v.
Murashige, 389 F.3d 880, 882-83, 886-88 (9th Cir. 2004)
(allowing pretrial detainee challenging retrial to proceed
under § 2241). Section 2241 allows “the Supreme
Court, any justice thereof, the district courts and any
circuit judge” to grant writs of habeas corpus
“within their respective jurisdictions.” 28
U.S.C. § 2241(a).
of the Rules Governing Section 2254 Cases, which applies to
habeas petitions brought pursuant to 28 U.S.C. § 2241,
requires the court to summarily dismiss a habeas petition if
“it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the