Waikīkī, Jr. v. State

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 26-JUN-2020 09:27 AM

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

NELSON NAHINU WAIKÎKÎ, JR., Petitioner-Appellant, v. STATE OF HAWAI#I, Respondent-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (S.P.P. NO. 15-1-0005(1) (CR. NO. 13-1-0428(1)))

ORDER (By: Leonard, J.) Upon consideration of the Motion to Release Non-Violent Community Custody Prisoner from Custody with Special Release Terms and Conditions; Motion to Release Non-Violent Community Custody Prisoner Amid Coronavirus COVID-19 Bio-Terrorism Pandemic; Motion for Court Appointed Counsel; Motion to Proceed In Forma Pauperis (Attached Exhibit '1'); Ex Parte Motion for Recommendation of Release From Custody by Plaintiff-Pro Se Waikiki To Supreme Court Judge (Attached Exhibit '2'); Motion for Affirmative Relief Pursuant to Private Law 114th Congress 114-31 Section 4 Passed 2016 (Attached Exhibit '3'); Declaration of Plaintiff Pro Se Waikiki (Motion), filed May 6, 2020, by self- represented Petitioner-Appellant Nelson N. Waikiki, Jr. (Waikiki), the papers in support, the record, and there being no opposition, it appears that: (1) Waikiki seeks release from custody due to the COVID-19 pandemic pursuant to the Hawai#i Supreme Court's

proceedings to address emergency petitions to reduce inmate populations. On June 5, 2020, the Hawai#i Supreme Court entered an order concluding the foregoing proceedings. Thus, the court will deny Waikiki's request for release from custody; (2) Waikiki also seeks appointment of counsel. The underlying petition is one for post-conviction relief, under Hawai#i Rules of Penal Procedure Rule 40. The constitutional right to counsel does not extend to post-conviction challenges. Engstrom v. Naauao, 51 Haw. 318, 321, 459 P.2d 376, 378 (1969); see also State v. Levi, 102 Hawai#i 282, 288, 75 P.3d 1173, 1179 (2003). Waikiki fails to demonstrate the petition raised "substantial issues which require marshalling of evidence and logical presentation of contentions" that might warrant discretionary appointment of counsel. See Engstrom, 51 Haw. at 321, 459 P.2d at 378. Thus, the court will deny Waikiki's request for appointment of counsel on appeal without prejudice to any relief that might be granted on the merits of this appeal; (3) On April 3, 2020, the Circuit Court of the Second Circuit granted Waikiki leave to proceed in forma pauperis on appeal; therefore, Waikiki's instant request for leave to proceed on appeal in forma pauperis is unnecessary. Therefore, IT IS HEREBY ORDERED that the Motion is denied as follows: (1) The request for release from custody is denied; (2) The request for appointment of counsel is denied without prejudice; and (3) The request for leave to proceed in forma pauperis is denied as unnecessary. DATED: Honolulu, Hawai#i, June 26, 2020.

/s/ Katherine G. Leonard Associate Judge