Aguirre v. Palacios

Opinion

IN THE SUPERIOR COURT

OF GUAM

2

3 NATHAN G. AGUIRRE, ) Special Proceedings No. SP0064-09 4 )

Petitioner, )

5 V. )

DECISION AND ORDER

)

6 JOSE B. PALACIOS, )

7 Respondent. )

)

8

9

10 INTRODUCTION

II This matter came before the Honorable Judge Michael J. Bordallo on March 20, 2013 on

12 Petitioners' motions to vacate and set aside the Court's October 12, 2009, Decision and Order

13 and motions to amend petition. Petitioner was represented by Attorney Howard G. Trapp.

14 Respondent was represented by Assistant Attorney General Marianne Woloschuk. Having

15 reviewed the memorandum and papers presented and having received the arguments of the 16 parties the Court now issues the following decision denying Petitioner's requests for their 17 failure to comply with the specificity requirements of the laws and rules regulating requests for 18 relief.

19 BACKGROUND

20 This matter arises out of an Amended Petition for a Writ of Habeas Corpus filed on 21 September 21, 2009. A jury convicted Petitioner of Aggravated Murder, Murder and two 22 counts of Special Allegation of Possession and Use of a Deadly Weapon in the Commission of 23 a Felony on July 12, 1996. He was sentenced on March 27, 2000. A judgment was filed on 24 February 21, 2003. Following his appeal Petitioner was re-sentenced on November 14, 2008.

25 The term of Petitioner's sentence is Life without Parole.

26 On April 13, 2011 Petitioner filed four papers. They were entitled: 1) Motion to Vacate 27 and Set Aside Decis~on and Order; 2) Memorandum in Support of Motion to Vacate and Set 28 Aside Decision and Order; 3) Motion to Amend Petition; and 4) Memorandum in Support of

Motion to Amend Petition. In them Petitioner requests that the Court's October 12, 2009, 2 decision denying his September 21, 2009, amended petition for writ of habeas corpus be 3 vacated. In his request to vacate Petitioner argues that the court lacked jurisdiction to hear the 4 matter. To support this argument he cites to the 8 GCA §135.14 statutory requirements. This 5 Section mandates that the Attorney General be served with a copy of the Petition at least 24 6 hours prior to it being made returnable. Petitioner asserts that the Respondent was not served 7 with a copy of the Petition in accordance with this statue.

8 In Petitioner's request to amend his September 21, 2009, amended petition, he argues that 9 it should be allowed under Rule 15(a) of the Guam Rules of Civil Procedure's standard of it 10 being required by justice.

11

12 On August 15, 2011, Respondent filed a paper in opposition to Petitioner's requests. It

13 was entitled, Respondent's Opposition to (1) Motion to Vacate and Set Aside Decision and

14 Order and (2) To Motion to Amend Petition. In its paper Respondent asserts that at the time of

15 the hearing the mandates of Section 135.14 of Title 8 of the Guam Code had been met. It

16 asserts that a copy of the petition was served upon the Attorney General on April 3, 2009, as 17 evidence by a October 5, 2009 certificate of service. Respondent further argues and asserts 18 that the Respondent's right under the statute may be waived and that it so waives that right. 19 In opposition to Petitioner's request to amend his petition Respondent argues that 20 Petitioner's requests to amend cannot be supported under any analysis of the appropriate 21 standard or by any assertions of facts. In support of its arguments Respondent cites to 22 applicable portions ofthe Guam Rules of Civil Procedure for motions to amend pleadings.

23 Petitioner did not file a reply paper in response to Respondent's opposition.

24 On May 4, 2012, Petitioner filed two papers entitled, Amended Motion to Amend 25 Petition and Amended Memorandum in Support of Amended Motion to Amend Petition. In 26 his motions Petitioner requests that he be allowed to amend his September 21, 2009, amended 27 petition. In support of this request he argues that his amendment is required by justice because 28 a petition for writ of habeas corpus should not be denied for technical irregularities. In support of this argument he cites to a 2005 California Court of Appeals Case entitled, Board of Prisons 2 Terms v. Superior Ct., 31 Cal. Rptr.3d 70, 89-90 (Cal. Ct. App. 2005). 3 Respondent on August 30, 2012, filed a paper in opposition to Petitioner's amended 4 requests. In its opposition Respondent compares Petitioner's request to a motion for 5 reconsideration and applying Rules 58, 59, and 60(b) of the Guam Rules of Civil Procedure 6 argues and asserts that Petitioner's request fails under the application of these rules.

7 Petitioner did not file a reply paper in response to Respondent's opposition paper.

8 On March 27, 2013, subsequent to the Court's hearing in this matter, Respondent filed a 9 paper entitled, Respondent's Memorandum of Law. In its paper Respondent distinguishes 10 Martinez v. Ryan, the U.S. Supreme Court case Petitioner relied upon at the hearing and refutes II

12 Petitioner's assertion a he had not yet had the opportunity to raise the claim of ineffective

13 assistance of counsel with the aid of an attorney.

14 DISCUSSION

15 Motion to Vacate and Set Aside Decision and Order

16 Petitioner requests that the Court vacate its October 12, 2009, Decision and Order

17 denying Petitioner's September 21, 2009, Amended Petition for Writ of Habeas Corpus, and

18 that he be allowed to amend his amended petition. Respondent opposes these requests. 19 In the absence of a specific statute or rule regulating the procedures applicable to 20 petitions for writ of habeas corpus the Guam Rules of Civil Procedure apply. Guam R. Civ. P. 21 1. see also, Rapadas v. Benito, 2011, Guam 28 ~~ 1, 9 (applying Rule 58 to a writ proceeding).

22 Rule 7(b )(1) of the Guam Rules of Civil Procedure regulates the filing of motions and other 23 papers. It provides, 24 An application to the court for an order shall be by motion which, unless made during a 25 hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is 26 fulfilled ifthe motion is stated in a written notice of the hearing of the motion. 27 !d. at 7(b)(1). A party's failure to assert the grounds for its request may warrant denial. In re 28 Estate of Concepcion, 2003 Guam 12 (Sup. Ct. Guam 2003). In 2008 the Guam Supreme

Court explained the burden a moving party bears when requesting relief under Rule 59 of the 2 Guam Rules of Civil Procedure. !d. The Lamb court held that "In order to conduct a 3 meaningful review, the parties must articulate their arguments in a way that allows this court to 4 apply recognized rules of law: It is not sufficient for a party 'simply to announce a position or 5

6 assert an error and then leave it up to this Court to discover and rationalize the basis for his

7 claims, or unravel and elaborate for him his arguments .... "' Lamb v. Hoffman, 2008 Guam 2, 8 ,, 34-36 (Sup. Ct. Guam 2008). Upon review of the court's decision in Lamb and the facial 9 requirements of Rule 7 the Court finds that the Lamb Court's interpretation applies equally to 10

II all motions and papers brought under Rule 7(b).

12 In this case the Court is not persuaded that the Petitioner has met the moving

13 requirements mandated by the Court's rules and the Supreme Court's interpretation of them. 14 Although Petitioner asserts that the Court lacked jurisdiction to review and rule upon his 15 petition, he fails to assert or argue the applicable rule allowing for his request, or analyze and 16

17 argue how the facts of his case apply to the recognized standard which merit the relief he

18 requests. Absent the Petitioner providing this information the Court is left to, "to discover and 19 rationalize the basis for his claims, or unravel and elaborate for him his arguments." Lamb, 20 2008 Guam 2, ,, 34-36. Placing such a burden upon the Court undermines the ideals of due 21 process and fairness.

22

23 Furthermore, on their face the court is not persuaded that under any standard or rule it

24 lacked jurisdiction to order and enter its October 12, 2009 Decision and Order. Contrary to the 25 assertions of the Petitioner, there is evidence that the Respondent was served with a copy of the 26 Petition. Moreover, Respondent has waived any right to service under an application of 27

28 Section 135.14.

Motion to Amend Petition 2 Petitioner requests that he be allowed to amend his September 21, 2009, amended 3 petition for writ of habeas corpus, because it is required by justice. Respondent opposes this 4 request. In support of the request Petitioner cites to Rule 15(a) of the Guam Rules of Civil 5

6 Procedure.

7 Rule 15(a) regulates the amendment of pleadings. On October 12, 2009, the Court 8 entered an order denying Petitioner's amended petition. Petitioner fails in his request to argue 9 or assert how the standard set forth in rule 15(a) is applicable to pleadings that have been 10

II adjudicated. The court unaware of any precedent, binding or persuasive, that applies Rule 15

12 in such a manner. Absent this the court is unable to analyze or grant Petitioner's request.

13 Guam R. Civ. P. 7(b); Lamb, 2008 Guam 2, ~~ 34-36. Furthermore, although Petitioner argues 14 that his request is required by justice, he does not explain or arge how his proposed 15 amendments might change the outcome, are not futile, or otherwise merit a finding satisfying 16

17 justice. Absent Petitioner asserting these facts the court is unable to grant his request.

18 CONCLUSION 19 Based on the foregoing, the Court denies Petitioner's requests to vacate its October 12, 20 2009, decision and order and amend his September 21, 2009 petition.

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23 SO ORDERED, this Jj_'"iT day

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