Afaisen v. Lamorena

Opinion

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SUf>ERI - OURT

OF GUAM ·

2 ZUIB APR -2 A11 9: 28

3 Cl:ERK OE COURT

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6 IN THE SUPERIOR COURT OF GUAM 7

8 TOMMY J.Q. AFAISEN, SPECIAL PROCEEDINGS

9 Petitioner, CASE NO. SP0002-18

10 vs.

DECISION AND ORDER

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12 ALBERTO ANTHONY LAMORENA V, Director - Department of Corrections, 13

14 Respondent.

15 INTRODUCTION

16 This matter came before the Honorable Vernon P. Perez on February 16, 2018, for 17 hearing on Petitioner Tommy J.Q. Afaisen's ("Afaisen") Motion for Appointment of Counsel.

18 Petitioner was present and appeared pro se. Assistant Attorney General J. Basil O'Mallan III 19 was present on behalf of Respondent Alberto Anthony Lamorena, Director - Department of 20 Corrections, in his individual capacity ("Respondent"). Having reviewed the pleadings, the 21 arguments presented, and the record, the Court now issues the following Decision and Order.

22 BACKGROUND

23 In People v. Afaisen, Superior Court of Guam Case No. CF0626-14, Afaisen was found 24 guilty by a jury of his peers to: ( 1) two counts of Attempted Murder (As a First Degree Felony), 25 with two counts of a Special Allegation of Possession and Use of a Deadly Weapon in the 26 Commission of a Felony; (2) two counts of Aggravated Assault (As a Second Degree Felony), 27 with two counts of a Special Allegation of Possession and Use of a Deadly Weapon in the 28

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Commission of a Felony; (3) Robbery (As a Second Degree Felony), with a Special Allegation 2 of Possession and Use of a Deadly Weapon in the Commission of a Felony; (4) Theft of a 3 Motor Vehicle (As a Second Degree Felony); and (5) Terrorizing (As a Third Degree Felony), 4 with a Special Allegation of Possession and Use of a Deadly Weapon in the Commission of a 5 Felony. Afaisen was sentenced to ten (10) years imprisonment for each count of Attempted 6 Murder, concurrent to all charges except the special allegation charges; ten (10) years 7 imprisonment for Robbery, concurrent to all charges except special allegation charges; and five 8 ( 5) years imprisonment for Theft of a Motor Vehicle, concurrent to all charges except special

9 allegation charges. Afaisen was sentenced to five (5) years imprisonment, consecutive to all 10 charges, for each of the special allegation charges associated with Attempted Murder and II Robbery. Sentencing for each count of Aggravated Assault and their associated special I2 allegation charges merged with the sentence imposed for Attempted Murder, and sentencing for I3 the charge of Terrorizing and its associated special allegation merged with the sentence imposed I4 for Robbery. Thus, Afaisen was sentenced to twenty-five (25) years imprisonment in total. I5 The matter subsequently went on appeal, and the Supreme Court of Guam affirmed the I6 Attempted Murder convictions and sentences, finding that Afaisen's protection against double I7 jeopardy was not violated when he was convicted for two attempted murders and related special I8 allegations as a result of firing multiple shots in the general direction of two police officers, but I9 reversed the Theft of a Motor Vehicle conviction and vacated the corresponding sentence, 20 finding that his protection against double jeopardy was violated when he was convicted and

2I sentenced for both Theft of a Motor Vehicle and Robbery. See People v. Afaisen, 2016 Guam

22 31. 23 On remand, the Trial Court dismissed the Theft of a Motor Vehicle charge on April 17, 24 2017. After the dismissal, Afaisen' s sentence remained at twenty-five (25) years imprisonment.

25 On January 5, 2018, Defendant filed a Petition for Writ of Habeas Corpus, requesting for

26 "further scrutinization" of the Supreme Court of Guam's Opinion regarding the Double

27 Jeopardy Clause. See generally, Petition, Jan. 5, 2018.

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On January 17, 2018, Defendant filed a Notice and Motion for Appointment of Counsel, 2 requesting the Court appoint him counsel because he cannot afford counsel on his own, and 3 receives no legal assistance. On January 25, 2018, the People of Guam filed a Response to 4 Motion for Appointment of Counsel on behalf of Respondent. 5 DISCUSSION 6 The Local Rules of the Superior Court of Guam provide that the Court is mandated to 7 appoint counsel in certain settings, and has the discretion to do so in other settings. The Court 8 shall appoint counsel for a person financially unable to obtain adequate representation who is 9 "entitled to appointment of counsel under the Sixth Amendment to the United States 10 Constitution, or facing loss of liberty and Guam law, the United States Constitution, or the 11 applicable provision of the Organic Act, require the appointment of counsel." (Misc. R. 12 1.1.1(a)(4)). The Court may appoint counsel for a person who is financially unable to obtain 13 representation who is "seeking collateral relief from a judgment in a criminal matter" or "a 14 person whose rights under the United States Constitution (or the Organic Act) may be 15 substantially infringed without the appointment of counsel." (Misc. R. 1.1.1(b)(2)-(3)). 16 The Court finds that Afaisen does not have a mandatory right to counsel in this matter. 17 "There is no constitutional right to an attorney in state post-conviction proceedings." Coleman 18 v. Thompson, 501 U.S. 722, 754 (1991) (citation omitted). "Although the federal Constitution 19 requires that counsel be appointed for indigent criminal defendants when a conviction results in 20 imprisonment, this requirement does not extend, as a federal constitutional matter, to 21 postconviction collateral attacks on a conviction or sentence in state or federal court." Habeas 22 Corpus Resource Center vs. U.S. Dept. of Justice, 816 F.3d 1241, 1244 (citing Alabama v. 23 Shelton, 535 U.S. 654, 661-62 (2002) and Pennsylvania v. Finley, 481 U.S. 551, 555-59 24 (1987)).

25 The Court, may, however, use its discretion in appointing counsel for Afaisen if it

26 believes his rights may be substantially infringed absent legal representation.

27 In deciding whether to appoint counsel in a habeas proceeding, the district court must evaluate the likelihood of success on the merits as well as the ability of the 28

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petitioner to articulate his claims pro se in the light of the complexity of the legal issues involved. These considerations are not separate and distinct from the 2 underlying claim, but are inextricably enmeshed with them. 3 Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (internal citations omitted). 4 In this case, Afaisen brings forth his Petition for Habeas Corpus alleging double

5 jeopardy violations as to his two convictions for Attempted Murder and their associated special 6 allegations. See generally, Petition, Jan. 5, 2018. Afaisen states that although the Supreme 7 Court of Guam reversed in part one of his convictions, it "did little to nothing" as his sentence 8 remained at 25 years. See id. at 3. Afaisen states he "cannot be content with the opinion of the 9 Supreme Court of Guam decisions with a partial ruling of the Constitutional Violation with 10 Petitioners Double Jeopardy Clause under the Fifth Amendment. Id. at 5. Afaisen also 11 references a denial of his Motion to Reduce Sentence in the criminal matter, after the matter was 12 remanded back to the Trial Court. Jd. at 3. 13 The People, in response to Afaisen's Motion for Appointment of Counsel, argue that the 14 double jeopardy arguments relating to multiple punishments in the criminal mater were already 15 addressed extensively "both by the trial court granting Afaisen's motion to have several of the 16 charges merge prior to his original sentencing, and by the Supreme Court of Guam" in his 17 appeal. (Resp. at 4-5). 18 The Court is inclined to agree, and does not find that Afaisen's rights may be 19 substantially infringed absent legal representation. Afaisen brings forth legal issues in his 20 Petition that have already been appealed before the Supreme Court of Guam with the assistance 21 of counsel. Thus, in the interest of judicial economy and finality, the Court will not appoint 22 counsel for Afaisen in this matter, and DENIES the Motion for Appointment of Counsel. 23 \\

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CONCLUSION

2 For the foregoing reasons, the Court hereby DENIES the Motion for Appointment of 3 Counsel. Further Proceedings are set for _ _AI-R __ 2 7_2018

_ _ at 9:30 a.m.

-~-~y of April, 2018.

4 IT IS SO ORDERED this

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9 HONORABLE VERNON P. PEREZ Judge, Superior Court of Guam 10

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13 RkEIYED'FOR SERVICE: nM>E: ll~bt;t-\

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