         IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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ACTION.
                                                           RENDERED: MAY 5, 2016
                                                             NOT TO BE PUBLISHED

                $511prrittr         (Court of 7 rttfuritv
                                 2015-SC-000201-MR


KEVIN HENDERSON                                                             APPELLANT


                     ON APPEAL FROM COURT OF APPEALS
V.                          2014-CA-001717-OA
                 JEFFERSON CIRCUIT COURT NO. 97-CR-002403


HON. CHARLES L. CUNNINGHAM, JUDGE                                            APPELLEE
JEFFERSON CIRCUIT COURT

AND

COMMONWEALTH OF KENTUCKY                                   REAL PARTY IN INTEREST


                    MEMORANDUM OPINION OF THE COURT

                                      AFFIRMING

       Kevin Henderson appeals as a matter of right from an order of the Court

of Appeals denying his petition for a writ of mandamus.' Kentucky Rule of

Civil ProcedUre (CR) 76.36(7)(a); Ky. Const. § 115. Henderson seeks the writ to

order the respondent judge to conduct a probable cause hearing to determine if

Cedric O'Neal committed perjury based on his testimony in their joint murder

trial. As such use of a writ of mandamus is improper, we affirm the Court of

Appeals' denial of Henderson's petition.



       1 Henderson's pleading is styled as being a request for a writ of prohibition and
writ of mandamus. However, given the facts presented we evaluate his petition as
being more accurately styled as a request for a writ of mandamus. Henderson is not
entitled to either form of writ.
                         FACTS AND PROCEDURAL HISTORY

         In 1997, Henderson and O'Neal were charged with the murder and

robbery of Quinton Hammond. Both were convicted and Henderson was

sentenced to concurrent terms of life imprisonment on the murder conviction

and twenty years' imprisonment on the robbery conviction. This Court

affirmed Henderson's convictions in an unpublished memorandum opinion

rendered on December 20, 2001. 2 Afterwards, Henderson sought post-

conviction relief pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42

and CR 60.02. Subsequently, both motions were denied.

         Following the denial of his post-conviction motions, Henderson filed a

"Motion to Compel Compliance of Rules of Criminal Procedure." In that

motion, Henderson requested that the respondent judge order the Jefferson

County Commonwealth Attorney's Office and the Jefferson County Attorney's

Office to prosecute O'Neal for perjury. Alternately, Henderson requested that

the respondent judge conduct a probable cause hearing into O'Neal's alleged

perjury. The respondent judge denied the motion.

         In November 2014, Henderson filed a petition for a writ of mandamus

with the Court of Appeals. The Court of Appeals denied the petition after

determining that Henderson had failed to meet the requisite criteria for the

issuance of a writ. Henderson appealed that order to this Court as a matter of

right.




         2   Henderson v. Commonwealth, 1998-SC-000624-MR (Ky. 2001).

                                            2
                                    ANALYSIS

      Henderson argues that the Court of Appeals erred in denying his petition

for a writ of mandamus. A writ of mandamus is an "extraordinary remedy

which compels the performance of a ministerial act or mandatory duty where

there is a clear legal right or no adequate remedy at law." Cty. of Harlan v.

Appalachian Reg'l Healthcare, Inc., 85 S.W.3d 607, 613 (Ky. 2002).

      A writ of mandamus may only be granted under two circumstances.

First, where it is shown that "the lower court is proceeding or is about to

proceed outside of its jurisdiction and there is no remedy through an

application to an intermediate court." Mahoney v. McDonald-Burkman, 320

S.W.3d 75, 77 (Ky. 2010) (citing Goldstein v. Feeley, 299 S.W.3d 549, 552 (Ky.

2009). The second, and more common, circumstance justifying the writ is

where it is shown "that the lower court is acting or is about to act erroneously,

although within its jurisdiction, and there exists no adequate remedy by appeal

or otherwise, and great injustice and irreparable injury will result if the petition

is not granted." Id. (citation omitted). We review the decisions of the Court of

Appeals in such cases under the abuse of discretion standard.       Grange Mut.

Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004), as modified (Dec. 1, 2004).

      In the case at bar, Henderson argues that the respondent judge is acting

erroneously, but within his jurisdiction. As such, Henderson must

demonstrate that the respondent judge is acting or is about to act erroneously,

that there no adequate remedy by appeal or otherwise, and that great injustice




                                         3
and irreparable injury will occur if the petition is denied. Henderson has failed

to meet these criteria for the issuance of a writ.

      First, the respondent judge has not acted erroneously. Henderson's

request for the respondent judge to conduct a probable cause hearing was

properly denied. As noted by the respondent judge, the circuit court does not

have the legal authority to direct the Jefferson County Commonwealth's

Attorney or County Attorney to prosecute criminal offenses. The power to

charge persons with crimes and to prosecute those charges belongs exclusively

to the executive department. Ky. Const. § 81 (Governor to see that laws are

faithfully executed).

      Second, Henderson's writ request is premised on his motion for the

respondent judge to hold a probable cause hearing, a motion that was denied

on September 26, 2014. Henderson could have appealed that adverse ruling

but did not. His failure to pursue a readily available appellate remedy is also

fatal to his request for the issuance of a writ.

      Finally, Henderson is unable to demonstrate irreparable injury. As

previously noted, the judiciary does not have the authority to direct the

executive department as to what cases should be prosecuted. It is clear from

the record that the Jefferson County Commonwealth's Attorney and County

Attorney do not intend to pursue perjury charges against O'Neal. To reiterate,

the courts do not possess the authority to direct either the Jefferson County

Commonwealth's Attorney or County Attorney to take action that is solely

within their respective constitutional spheres. As such, Henderson is unable to
demonstrate that great injustice and irreparable injury will result from the

denial of the petition.

      As Henderson has failed to meet the criteria for the issuance of a writ of

mandamus, the order of the Court of Appeals denying a writ is hereby affirmed.

      All sitting. All concur.




APPELLANT:

Kevin Antwan Henderson, #133117
Kentucky State. Reformatory


APPELLEE:

Hon. Charles Louis Cunningham, Jr.
Judge, Jefferson Circuit Court


COMMONWEALTH OF KENTUCKY,
REAL PARTY IN INTEREST:

Andy Beshear, Attorney General of Kentucky
