                                                     Electronically Filed
                                                     Supreme Court
                                                     SCPW-11-0000042
                                                     08-FEB-2011
                                                     02:40 PM



                       NO. SCPW-11-0000042


          IN THE SUPREME COURT OF THE STATE OF HAWAI'I



                 MICHAEL C. TIERNEY, Petitioner,


                               vs.


     THE HONORABLE RICHARD K. PERKINS, JUDGE OF THE CIRCUIT

    COURT OF THE FIRST CIRCUIT, STATE OF HAWAI'I, Respondent.


                       ORIGINAL PROCEEDING

                 (CR. NOS. 88-2209 and 89-0024)


                              ORDER

    (By: Recktenwald, C.J., Nakayama, Acoba, and Duffy, JJ.

   and Circuit Judge Crandall, assigned by reason of vacancy)


          Upon consideration of petitioner Michael C. Tierney's


petition for a writ of mandamus, it appears that petitioner's


notice of appeal, dated January 3, 2011, was not "denied" by the


respondent judge, but was filed by the circuit court on January


10, 2011 and is being processed in the intermediate court of


appeals as appeal No. CAAP-11-0000016.   It further appears that a


motion for waiver of appellate fees for No. CAAP-11-0000016 must


be made in the appellate court, not the circuit court.     See HRAP


24(a) ("A party to an action in the circuit . . . court who


desires to proceed on appeal in forma pauperis shall file in the


appellate court a motion for leave to so proceed[.]"). 


Therefore, petitioner is not entitled to mandamus 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.).    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 FURTHER ORDERED that the petition for a writ of


mandamus is denied without prejudice to petitioner filing, in the


intermediate court of appeals, in No. CAAP-11-0000016, a motion


to proceed on appeal in forma pauperis pursuant to HRAP 24(a).


          DATED:   Honolulu, Hawai'i, February 8, 2011.

                               /s/ Mark E. Recktenwald

                               /s/ Paula A. Nakayama

                               /s/ Simeon R. Acoba, Jr.

                               /s/ James E. Duffy, Jr.

                               /s/ Virginia L. Crandall




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