Diego v. Lamorena

Opinion

ZOI8 JAN 23 52 3 c~ ... r~,..-·~"

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6 IN THE suPERIOR COURT OF ::AM··?--'

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8 DUANE PAUL DIEGO, SPECIAL PROCEEDINGS

9 Petitioner, CASE NO. SP0110-17

10 vs.

DECISION AND ORDER

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12 ALBERTO A. LAMORENA V, Director, Guam Department of Corrections, 13

14 Respondent.

15 INTRODUCTION

16 This matter is before the Honorable Vernon P. Perez on Petitioner Duane Paul Diego's 17 ("Diego") Motion for Appointment of Counsel. Diego currently represents himself pro se, and 18 Assistant Attorney General J. Basil O'Mallan III 1 represents Respondent Alberto Tony 19 Lamorena V in his capacity as the Director of Guam Department of Corrections 20 ("Respondent"). Having reviewed the pleadings, the arguments presented, and the record, the 21 Court now issues the following Decision and Order.

22 BACKGROUND

23 In People v. Diego, Superior Court of Guam Criminal Case No. CF0398-17, Diego was 24 found guilty by a jury of his peers to the following charges: ( 1) First Degree Criminal Sexual 25 Conduct (As a First Degree Felony) - Five Counts; (2) Second Degree Criminal Sexual 26 1 27 Assistant Attorney General James C. Collins was present at the first hearing in this matter on October 6, 2017, and submitted the People's Response to Motion for Appointment of Counsel; however, the Court understands tha 28 Attorney O'Mallan will be handling this matter. See Resp., Oct. 30,2017 at 2, fn. I.

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Conduct (As a First Degree Felony)- Five Counts; (3) Third Degree Criminal Sexual Conduct 2 (As a First Degree Felony)- Five Counts; (4) Assault with Intent to Commit Criminal Sexual 3 Conduct (As a Third Degree Felony); (5) Kidnapping (As a Second Degree Felony); (6) 4 Unlawful Restraint (As a Misdemeanor), as a lesser included offense ofFelonious Restraint (As 5 a Third Degree Felony); and (7) Terrorizing (As a Third Degree Felony). Diego was sentenced 6 to twenty (20) years imprisonment at the Department of Corrections for the First Degree 7 Criminal Sexual Conduct conviction, and all other sentences for the other offenses were 8 subsumed into that amount. 9 The matter subsequently went on appeal and was affirmed by the Supreme Court of 10 Guam. See People v. Diego, 2013 Guam 5. The Supreme Court addressed the following issues: 11 (1) the victim's out-of-court identification via photo array, finding that the photo array was not 12 impermissibly suggestive (2013 Guam 15 <j[<j[ 11-21); (2) the kidnapping jury instruction, finding 13 that the instruction contained no error (2013 Guam 15 <j[<j[ 22-28); and (3) Diego's Motion for 14 Acquittal, finding that the trial court's denial was proper because a rational trier of fact could 15 have found the essential elements of the charged crimes beyond a reasonable doubt (2013 Guam 16 15 <j[<j[ 29-38). 17 On August 4, 2017, Diego filed a Petition for Writ of Habeas Corpus, alleging 18 ineffective assistance of counsel during trial and on appeal. 19 On August 31, 2017, Diego filed a Notice and Motion for Appointment of Counsel, 20 requesting the Court appoint him counsel because he cannot afford counsel and receives no 21 legal assistance. On October 30, 2017, the Government filed a Response to Motion for 22 Appointment of Counsel on behalf of Respondent. 23 DISCUSSION 24 The Local Rules of the Superior Court of Guam provide that the Court is mandated to 25 appoint counsel in certain settings, and has the discretion to do so in other settings. The Court 26 shall appoint counsel for a person financially unable to obtain adequate representation who is 27 "entitled to appointment of counsel under the Sixth Amendment to the United States 28 Constitution, or facing loss of liberty and Guam law, the United States Constitution, or the

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applicable provision of the Organic Act, reqmre the appointment of counsel." (Misc. R.

2 l.l.l(a)(4)). The Court may appoint counsel for a person who is financially unable to obtain 3 representation who is "seeking collateral relief from a judgment in a criminal matter" or "a 4 person whose rights under the United States Constitution (or the Organic Act) may be 5 substantially infringed without the appointment of counsel." (Misc. R. 1.1.1 (b )(2)-(3) ). 6 The Court finds that Diego does not have a mandatory right to counsel in this matter. 7 "There is no constitutional right to an attorney in state post-conviction proceedings." Coleman 8 v. Thompson, 501 U.S. 722, 754 (1991) (citation omitted). "Although the federal Constitution 9 requires that counsel be appointed for indigent criminal defendants when a conviction results in 10 imprisonment, this requirement does not extend, as a federal constitutional matter, to 11 postconviction collateral attacks on a conviction or sentence in state or federal court." Habeas 12 Corpus Resource Center vs. U.S. Dept. of Justice, 816 F.3d 1241, 1244 (citing Alabama v. 13 Shelton, 535 U.S. 654, 661-62 (2002) and Pennsylvania v. Finley, 481 U.S. 551, 555-59 14 (1987)). 15 The Court, may, however, use its discretion in appointing counsel for Diego if it believes 16 his rights may be substantially infringed absent legal representation. 17 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 18 petitioner to articulate his claims pro se in light of the complexity of the legal 19 issues involved. These considerations are not separate and distinct from the underlying claim, but are inextricably enmeshed with them.

20 Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (internal citations omitted). Thus, the 21 Court must consider whether Diego's petition has a likelihood of success and whether the facts 22 are simple enough for Diego to argue them prose.

23 The Court has doubts about Diego's likelihood of success on the merits. To establish 24 ineffective assistance of trial counsel, Diego must show: (1) his counsel's performance was 25 deficient in that it was objectively unreasonable under previous professional norms; and (2) it 26 prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The Court's 27

review of Diego's Petition presents several claims of ineffective assistance of counsel, including 28

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issues that have already been addressed by the Supreme Court of Guam on Diego's appeal such 2 as GPD's photo line-up identification and the victim's failure to identify him in Court at trial. 3 The remaining issues regard tactical decisions by his trial attorney including the decision not to 4 call a witness, Troy Morrison, to the stand, the quality of his representation prior to and during 5 trial, and allegations that the Office of the Attorney General and GPD failed to preserve 6 evidence. Diego alleges that a surveillance tape recording and the clothing he was wearing 7 were not preserved. (Petition at 3-4). According to the Government, the police reports in 8 Diego's criminal case do not reference any surveillance video and that there was a seven or 9 eight day time span in between when the victim reported the incident on August 12 or 13, 2007, 10 and Diego's arrest on August 20, 2007. (Resp. at 4-5). Thus, any clothing that he was wearing 11 at the time of his arrest would have minimal trace, assuming it was the same clothing worn at 12 the time of the incident. !d. It is not clear from the pleadings however, whether Troy Morrison 13 may have been a key witness that was not called, and if this was a strategy decision on the part 14 of Diego's trial counsel. 15 The Court acknowledges that while the Alternate Public Defender ("APD") may provide 16 information about the extent of the contact(s) Diego had with its office prior to trial or any other 17 issues, the APD attorney that represented Diego at trial, Jeffrey Warfied, no longer resides on 18 Guam, which may make it difficult to corroborate or expand on the information APD has. The 19 Court also acknowledges that while Diego may have received assistance in completing form 20 pleadings in this matter at DOC, he may need assistance in articulating his claims further at 21 court. Therefore, the Court chooses to exercise its discretion and appoint counsel for Diego. 22 Lastly, the Court must make a determination of financial need before the appointment of 23 counsel pursuant to Misc. Rule 1.1.2.A. On August 4, 2017, the Court granted Diego's Motion 24 to Proceed in Forma Pauperis, finding that Diego is presently indigent. Therefore, the Court 25 finds that Diego meets the prerequisite financial need. 26 \\

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CONCLUSION

2 For the foregoing reasons, the Court hereby GRANTS Diego's Motion for Appointment 3 of Counsel. A Notice of Court-Appointed Counsel will be issued concurrently with this 4 Decision and Order. A Further Proceedings is set for FEB 1 6 2018 at CJ :(}() .fi'J. a 5 IT IS SO ORDERED thisc:16 t y of January, 2018.

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9 Judge, Superior Court of Guam 10

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i ;.;knowledge that a copy original hereto was placed In tho 24 xo

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