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

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