NO. 25068
IN THE SUPREME COURT OF THE STATE OF HAWAI`I
STATE OF HAWAI`I, Plaintiff-Appellee,
vs.
KEITH MURAUSKAS, Defendant-Appellant,
and
EDWARD WALLACE MARTIN, Defendant.
APPEAL FROM THE FIRST CIRCUIT COURT
(CR. NO. 99-0704)
ORDER
(By: Levinson, J., for the court (1))
Upon
consideration of Defendant-Appellant's petition for writ of habeas
corpus, petition for writ of mandamus, Rule 40
petition for post conviction relief, the affidavits in support, and the
records and files herein, it appears that: (1) this matter
involves an appeal from a judgment of conviction and sentence; (2) the
appeal is fully briefed and assigned to the supreme
court for disposition; (3) 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 the alleged wrong or obtain
the requested relief; such writs are not intended to take the place of
an appeal. State v. Hamili, 87 Hawai`i 102, 104, 952
P.2d 390, 392 (1998); (4) the rules of appellate procedure do not authorize the consideration of a petition for writ of
mandamus in a pending appeal, and Appellant fails to demonstrate he is entitled to mandamus relief in the pending appeal;
(5) HRS § 660-3 governs the filing of writs of habeas corpus and provides that a court may issue writs of habeas corpus in
cases in which persons are unlawfully restrained of their liberty; (6) Appellant fails to demonstrate that he is unlawfully
restrained of his liberty; (7) a petition for post conviction relief pursuant to HRPP Rule 40 cannot be filed without leave of
the court, and Appellant presents no reason to grant him leave to file a Rule 40 petition during the pendency of this appeal.
Therefore,
IT IS HEREBY ORDERED that the petition for writ of mandamus, the petition for writ of habeas corpus, and the HRPP
Rule 40 petition are denied without prejudice to the court considering the points of error and arguments presented in
Appellant's opening brief.
DATED: Honolulu, Hawai`i, September 16, 2005.
Christopher Evans
for defendant-appellant
on the petitions
1. Considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.