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Gilroy v. The Kona Community Hospital Behavioral Health Authorities

United States District Court, D. Hawaii

January 9, 2020

WILLIAM M. GILROY, by and through his NEXT FRIEND, M. NOILANI MASON, Petitioner,
v.
THE KONA COMMUNITY HOSPITAL BEHAVIORAL HEALTH AUTHORITIES, RICHARD MCDOWELL, STATE OF HAWAII DEP'T OF HEALTH, Respondents.

          ORDER DISMISSING PETITION AND DENYING A CERTIFICATE OF APPEALABILITY

          Derrick K. Watson, United States District Judge.

         Before 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.[1] Respondent the State of Hawaii Department of Health (“DOH”) has filed a Response to the Petition. ECF No. 19.

         For the following reasons, the Petition is DISMISSED for lack of jurisdiction, and this action is terminated. Any request for a certificate of appealability is DENIED.

         I. BACKGROUND[2]

         On 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 119.

         On July 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.

         On 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.

         On 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.[3]

         DOH 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.

         II. STANDARD OF REVIEW

         The 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.

         Because 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).

         Rule 4 of the Rules Governing Section 2254 Cases, which applies to habeas petitions brought pursuant to 28 U.S.C. § 2241, [4] 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 district court.”

         III. “NEXT ...


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