Opinion
Civ. No. 99-00099.
March 30, 2000.
Robert M. Cruz, Pro Se., (2254 Motion) for Plaintiff.
Office of the Attorney General Government of Guam, By Angela M. Borzachillo, Assistant Attorney General, 2-200E Judicial Ctr. Bldg., 120 W. O'Brien Drive, Hagatna, Guam 96910 for Defendant.
ORDER
This case come before the Court on Plaintiff's 28 U.S.C. § 2254 Motion alleging that there was insufficient evidence to convict Plaintiff of Second Degree Robbery and Possession and Use of a Deadly Weapon.
PROCEDURAL HISTORY:
On April 22, 1997, after a trial by jury plaintiff, Robert Mantanona Cruz, (hereinafter Cruz), was found guilty of two counts of Second Degree Robbery and two counts of a special allegation of Possession and Use of a Deadly Weapon in the commission of a felony. (Exhibit 1, Judgment). Cruz appealed his conviction to the Supreme Court of Guam. The issues raised were sufficiency of the evidence regarding the definition and display of a deadly weapon and sufficiency of the evidence regarding whether the victim was in fear of immediate serious bodily injury. The convictions were upheld by the Supreme Court of Guam. People of Guam v. Robert Mantanona Cruz, 1998 Guam 18.
On February 12, 1999, Cruz filed a petition for a writ of habeas corpus in the Superior Court of Guam. Cruz v. People of Guam, SP0044-99. The issues raised were conflict of interest and ineffective assistance of counsel. On April 14, 1999, the People of Guam filed a Motion to Dismiss the Petition. The People's Motion was GRANTED and the petition for a writ of habeas corpus was DENIED, nunc pro tunc to April 15, 1999, in an order issued by the Honorable Michael I. Bordallo on April 26, 1999. (Exhibit 2, Order). On June 7, 1999, the Office of the Attorney General was served with a second petition for a writ of habeas corpus. Cruz v. Sablan, SP00162-99. The issues raised were irreconcilable conflict of interest and ineffective assistance of counsel. On June 18, 1999, the People filed a motion to deny petitioner's application for a writ of habeas corpus. On August 26, 1999, the Superior Court of Guam denied Cruz's petition for a writ of habeas corpus. (Exhibit 3, Decision and Order).
On September 16, 1999, Cruz filed a petition pursuant to Title 28 United States Code Section 2254, asking this Court for a writ of habeas corpus. The issues raised were ineffective assistance of counsel and irreconcilable conflict. (Petition at page 4). On February 8, 2000 this Court ordered the government to respond.
DECISION:
In his petition, Cruz informs this Court that he did not appeal from the adverse action on his petition for a writ of habeas corpus in the Superior Court of Guam because, "I wished to proceed with petition under 28 U.S.C. § 2254 for a writ of habeas corpus by a person in state custody." (Petition at page 4).
Title 28 United States Code Section 2254 states, in applicable part:
"(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the Courts of the State; or
(B)(i) there is an absence of available State corrective process."
Guam's Rules of Appellate Procedure, Rule 25, allows a petitioner to seek a writ of habeas corpus in the Supreme Court. Rule 25 reads:
"a) When petitioner is seeking a writ of habeas corpus, it shall comply with the requirements of 8 GCA Chapter 135. The petitioner must show why the petition has not been brought first in Superior Court, or if such a petition has been brought, the decision on such a petition and any appeals thereon."
In O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) the Supreme Court interpreted section 2254(b)(1) as requiring petitioner to present his claims to a state supreme court, even where the review is discretionary.
"Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." Id. at 1731.
Guam, as a territory, has been held to be like a state with regard to the exhaustion requirement. In Pador v. Mantanane, 653 F.2d 1277 (9th Cir. (Guam) 1981), the court upheld the District Court's denial of a writ of habeas corpus where petitioner failed to apply for a writ of habeas corpus first in the Superior Court of Guam. The court found:
"Although Guam is a territory rather than a state and appeals from its superior court are to a body having federal characteristics, it remains true, as it is in the case of states, that ordinarily it is better to require the exhaustion of local remedies before entertaining and issuing the writ of habeas corpus. Attention to constitutional duties will remain sharp so long as responsibility for their enforcement remains undiluted." Id. at 1279.
What has changed since Pador is the creation of the Supreme Court of Guam. The availability of a local appellate court makes stronger the argument that the local jurisdiction should have the opportunity to first pass on the question before a petitioner is allowed to proceed through the federal system. Cruz, having not filed a petition for a writ of habeas corpus in the Supreme Court of Guam, and such a remedy being available to him, has failed to exhaust his remedies. Therefore, the Court DENIES Cruz's petition for a writ of habeas corpus.
IT IS SO ORDERED.