                                                      Electronically Filed
                                                      Supreme Court
                                                      SCPW-13-0000130
                                                      20-MAR-2013
                                                      02:39 PM




                         SCPW-13-0000130

           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                 MICHAEL C. TIERNEY, Petitioner,

                               vs.

                  STATE OF HAWAI#I, Respondent.


                       ORIGINAL PROCEEDING

                              ORDER
(By: Recktenwald, C.J., Nakayama, Acoba, McKenna, and Pollack, JJ.)

          Upon consideration of petitioner Michael C. Tierney’s

“Motion for Release Pending Disposition of Post Conviction

Petition Rule 40 [HRAP 23]”, filed on March 4, 2013, which we

review as a petition for a writ of mandamus, and the document
attached thereto and submitted in support thereof, it appears

that petitioner is not entitled to the requested relief.

Petitioner fails to demonstrate that the State of Hawai#i owes

him a duty to release him from custody and provide him gate money

and clothes pending the disposition of his HRPP Rule 40

proceeding and petitioner has alternative means to seek relief.

See Kema v. Gaddis, 91 Hawai#i 200, 204, 982 P.2d 334, 338 (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);

Barnett v. Broderick, 84 Hawai#i 109, 111, 929 P.2d 1359, 1361

(1996) (mandamus relief is available to compel an official to

perform a duty allegedly owed to an individual only if the

individual’s claim is clear and certain, the official’s duty is

ministerial and so plainly prescribed as to be free from doubt,

and no other remedy is available).   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, March 20, 2013.

                              /s/ Mark E. Recktenwald

                              /s/ Paula A. Nakayama

                              /s/ Simeon R. Acoba, Jr.

                              /s/ Sabrina S. McKenna

                              /s/ Richard W. Pollack




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