Tierney v. State

• Court: Hawaii Supreme Court
• Decided: February 21, 2013
• Docket: SCPW-13-0000095
• Status: Published

Opinion

Electronically Filed Supreme Court SCPW-13-0000095 21-FEB-2013 09:37 AM

SCPW-13-000095

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

MICHAEL C. TIERNEY, Petitioner,

vs.

STATE OF HAWAI#I, Respondent.

ORIGINAL PROCEEDING (S.P.P. No. 12-1-0011)

ORDER DENYING PETITION FOR WRIT OF MANDAMUS (By: Recktenwald, C.J., Nakayama, Acoba, McKenna, and Pollack, JJ.)

Petitioner Michael C. Tierney submitted a document to

the court entitled “Motion for Appoin[t]ment of Counsel Demand by

U.S. Supreme Court” in which he contends that all states must

appoint counsel in post-conviction proceedings pursuant to the

United States Supreme Court’s decision in Martinez v. Ryan, 132

S. Ct. 1309 (Mar. 20, 2012). Upon consideration of the

submission, which we file and review as a petition for a writ of

mandamus, it appears that petitioner does not have a clear and

indisputable right to the appointment of counsel in a post-

conviction proceeding. See generally Engstrom v. Naauao, 51 Haw.

318, 321, 459 P.2d 376, 378 (1969). Petitioner fails to

demonstrate his eligibility for appointed counsel and the Martinez decision does not mandate the appointment of counsel.

Tierney, therefore, is not entitled to mandamus relief. See Kema

v. Gaddis, 91 Hawai#i 200, 204-05, 982 P.2d 334, 338-39 (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). 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.

DATED: Honolulu, Hawai#i, February 21, 2013.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Simeon R. Acoba, Jr.

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack