r- r f. SU2Ei UHT
2 R 18 j 9: L46 3 CLERK OF t )URT
6 IN THE SUPERIOR COURT OF GUAM 7
$ KEVIN ANTHONY GUERRERO, SPECIAL PROCEEDIGNS 9 Petitioner, CASE NO. SP0122-17
10 vs DECISION AND ORDER 11 ALBERTO ANTHONY LAMORENA, 12 Director Department of Corrections in his —
Individual Capacity,
14 Respondent.
15 INTRODUCTION 16 This matter came before the Honorable Vernon P. Perez on December 2$, 201$, for 17 Evidentiary Hearing on Petitioner Kevin Anthony Guerrero’s (“Guerrero”) Petition for Writ of 1$ Habeas Corpus. Present were Petitioner with counsel Jeffrey A. Moots and Assistant Attorney 19 General James C. Collins on behalf of Respondent Alberto Anthony Lamorena. Having 20 reviewed the pleadings, the arguments presented, and the record, the Court now issues the 21 following Decision and Order. 22 BACKGROUND 23 Guerrero was indicted in Superior Court of Guam Criminal Case No. CF0595-14 with 24 the following charges: (1) Theft of a Motor Vehicle (As a Second Degree Felony); (2) Theft By 25 Receiving (As a Second Degree Felony); (3) Burglary to a Motor Vehicle (As a Second Degree 26 Felony); (4) Theft (As a Second Degree Felony); (5) Fraudulent Use of a Credit Card (As a 27 Misdemeanor); and (6) Eluding a Police Officer (As a Misdemeanor). (Superseding Indictment, 2$
Guerrero v. Lamorena Case No. SP0122-17 Decision and Order
Pagelof5 1 Dec. 23, 2014). The Superseding Indictment also charges Guerrero with a Special Allegation: 2 Commission of a Felony While on Felony Release for the felony offenses. Id. 3 After a jury trial, Guerrero was acquitted of the charges of Theft of a Motor Vehicle (As 4 a Second Degree Felony) and Burglary to a Motor Vehicle (As a Second Degree Felony), and 5 was convicted of the charges of Theft by Receiving (As a Second Degree Felony); Theft (as a 6 Misdemeanor), as a lesser-included offense of Theft (As a Second Degree Felony); Fraudulent 7 Use of a Credit Card (As a Misdemeanor); Eluding a Police Officer (As a Misdemeanor), and a 8 Special Allegation of Commission of a Felony While on Felony Release. (Corrected Judgment, 9 May 25, 2016). Guerrero’s convictions were affirmed by the Supreme Court of Guam on 10 appeal. See People v. Guerrero, 2017 Guam 4. However, the Supreme Court declined to reach ii the merits of Guerrero’s ineffective assistance of counsel claim, finding it “best brought in a 12 habeas corpus proceeding. . . [since] the record [was] not sufficient to make a finding.. in his .
13 appeal.” Id. at ¶ 66. GuelTero subsequently filed the instant Petition for Writ of Habeas Corpus 14 on August 22, 2017. 15 On December 2$, 201$, the Court heard sworn testimony from Guerrero’s trial counsel, 16 former Assistant Public Defender Brian Kegerreis (“Attorney Kegerreis”), and from Guerrero 17 himself. 18 DISCUSSION 19 Guerrero seeks for habeas corpus relief based on ineffective assistance of counsel. See 20 generally, Petition, Aug. 22, 2017. A defendant’s right to effective assistance of counsel 21 derives from the Sixth Amendment, which provides that “[i]n all criminal prosecutions, the 22 accused shall enjoy the right. . . to have the Assistance of Counsel for his defense.” U.S. Const. 23 Amend. VI. “The Sixth Amendment right to counsel is the right to have effective assistance of 24 counsel.” People v. Meseral, 2014 Guam 13 ¶ 44 (quoting Strickland v. Washington, 466 U.S. 25 668, 686 (1984)). Guerrero bears the burden of proof to demonstrate that his trial counsel was 26 constitutionally inadequate. See Jernigan v. Collins, 980 f.2d 292, 296 (5th Cir. 1992). 27 Under Strickland, a two-part test is “employed to determine whether a defendant was 28 denied the effective assistance of counsel.” Meresal, 2014 Guam 13 ¶ 44 (citing People v. Ueki,
Page 2 of 5 1 1999 Guam 4). To prove ineffective assistance of counsel, the defendant “must establish that 2 counsel’s performance was deficient; then he must show that such deficiency prejudiced his 3 defense so as to deprive him of a fair trial. The benchmark for judging any claim of 4 ineffectiveness is whether counsel’s conduct so undermined the proper functioning of the 5 adversarial process that the trial cannot be relied on as having produced a just result.” Id. at ¶ 45 6 (quoting Strickland, 466 U.S. at 686-87). 7 Here, Guerrero argues that his Attorney Kegerreis was “deficient” under the first prong 8 of the ineffective assistance of counsel test because Kegerreis failed to adequately prepare for 9 the case or call a person named Michael Guzman Jr. as a witness in Guerrero’s favor during 10 trial. Attorney Kegerreis was unable to recall at the Evidentiary Hearing when his first time 11 meeting Guerrero was, nor when he discussed trial strategy with him. 12 Guerrero argues that Guzman was involved with the Ford Fusion Guerrero was accused 13 of stealing and should have been called as a witness trial. For Attorney Kegeneis to have been 14 “deficient” as trial counsel there must be a Guzman whom Attorney Kegerreis could have called 15 as a witness to testify on Guerrero’s behalf, but failed to do so. From Mr. Kegerreis’ testimony 16 and the record at trial, Guzman was unable to be located by either the defense or the People of 17 Guam at that time. Further, while the existence of Guzman is the primary issue of the instant is petition filed in 2017, no further evidence has been presented that he actually exists, except for 19 Guerrero’s testimony at the Evidentiary Hearing. A “deficiency” cannot be demonstrated 20 without affirmative evidence concerning what the alleged “missing witness” could have added
21 to a defendant’s defense at trial. See, e.g., Parks v. Carey, 100 Fed. Appx. 611, 613 (9th Cir. 22 2004) (“Courts routinely reject ineffective assistance claims based on a failure to investigate 23 where the petitioner fails to demonstrate what further investigation would have revealed.”). 24 Even if Guzman exists and was located in time for the jury trial, there has been no 25 demonstration that he would actually agree to come into court and testify on Guerrero’s behalf.
26 See e.g., Battle v. Armontrout, 814 Supp. 1412, 1419 (E.D. Mo. 1993) (“it is the movant’s 27 burden to establish that the witness could be located through reasonable investigation, that he
28 would have testified if he had been called as a witness, and that his testimony would have
Guerrero v. Lanorena Case No. SP0122-17 Decision and Order
- Page3of5 1 provided a viable defense.”). Guerrero argues that Guzman committed the theft of the Ford 2 Fusion; thus at trial, he would be questioned on such issue. Guzman could then invoke his right 3 under the Fifth Amendment to remain silent to prevent his own exposure to any criminal 4 liability. Guerrero has not demonstrated that calling Guzman, if found, would actually be able 5 to assist his case at trial; therefore it cannot be said that Attorney Keggereis was “deficient” in 6 failing to call Guzman as a witness, and Guerrero fails to meet the first prong of the Strickland 7 test. 8 Lastly, Guerrero was acquitted of the charge of Theft of a Motor Vehicle (As a Second 9 Degree felony), the offense that he alleges that Guzman is guilty of. Guenero implicates 10 Guzman as the person who stole the Ford Fusion from Guam Auto Spot on November 16, 2014. ii Although he was convicted of the charge of Theft by Receiving (As a Second Degree Felony) 12 based on his possession of the car two days later, Guerrero testified at trial that Guzman’s 13 involvement in the case was allowing Guerrero to borrow the vehicle, which Guzman already 14 had in his possession on November 18, 2014. Guerrero testified that he did not inspect the new is vehicle, and did not question why Guzman, who was described as unemployed and recently
16 operating a different motor vehicle, was in possession of the Ford Fusion. See Jury Trial Tr. at 17 108-121; 127-28, Jan.
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r- r f. SU2Ei UHT
2 R 18 j 9: L46 3 CLERK OF t )URT
6 IN THE SUPERIOR COURT OF GUAM 7
$ KEVIN ANTHONY GUERRERO, SPECIAL PROCEEDIGNS 9 Petitioner, CASE NO. SP0122-17
10 vs DECISION AND ORDER 11 ALBERTO ANTHONY LAMORENA, 12 Director Department of Corrections in his —
Individual Capacity,
14 Respondent.
15 INTRODUCTION 16 This matter came before the Honorable Vernon P. Perez on December 2$, 201$, for 17 Evidentiary Hearing on Petitioner Kevin Anthony Guerrero’s (“Guerrero”) Petition for Writ of 1$ Habeas Corpus. Present were Petitioner with counsel Jeffrey A. Moots and Assistant Attorney 19 General James C. Collins on behalf of Respondent Alberto Anthony Lamorena. Having 20 reviewed the pleadings, the arguments presented, and the record, the Court now issues the 21 following Decision and Order. 22 BACKGROUND 23 Guerrero was indicted in Superior Court of Guam Criminal Case No. CF0595-14 with 24 the following charges: (1) Theft of a Motor Vehicle (As a Second Degree Felony); (2) Theft By 25 Receiving (As a Second Degree Felony); (3) Burglary to a Motor Vehicle (As a Second Degree 26 Felony); (4) Theft (As a Second Degree Felony); (5) Fraudulent Use of a Credit Card (As a 27 Misdemeanor); and (6) Eluding a Police Officer (As a Misdemeanor). (Superseding Indictment, 2$
Guerrero v. Lamorena Case No. SP0122-17 Decision and Order
Pagelof5 1 Dec. 23, 2014). The Superseding Indictment also charges Guerrero with a Special Allegation: 2 Commission of a Felony While on Felony Release for the felony offenses. Id. 3 After a jury trial, Guerrero was acquitted of the charges of Theft of a Motor Vehicle (As 4 a Second Degree Felony) and Burglary to a Motor Vehicle (As a Second Degree Felony), and 5 was convicted of the charges of Theft by Receiving (As a Second Degree Felony); Theft (as a 6 Misdemeanor), as a lesser-included offense of Theft (As a Second Degree Felony); Fraudulent 7 Use of a Credit Card (As a Misdemeanor); Eluding a Police Officer (As a Misdemeanor), and a 8 Special Allegation of Commission of a Felony While on Felony Release. (Corrected Judgment, 9 May 25, 2016). Guerrero’s convictions were affirmed by the Supreme Court of Guam on 10 appeal. See People v. Guerrero, 2017 Guam 4. However, the Supreme Court declined to reach ii the merits of Guerrero’s ineffective assistance of counsel claim, finding it “best brought in a 12 habeas corpus proceeding. . . [since] the record [was] not sufficient to make a finding.. in his .
13 appeal.” Id. at ¶ 66. GuelTero subsequently filed the instant Petition for Writ of Habeas Corpus 14 on August 22, 2017. 15 On December 2$, 201$, the Court heard sworn testimony from Guerrero’s trial counsel, 16 former Assistant Public Defender Brian Kegerreis (“Attorney Kegerreis”), and from Guerrero 17 himself. 18 DISCUSSION 19 Guerrero seeks for habeas corpus relief based on ineffective assistance of counsel. See 20 generally, Petition, Aug. 22, 2017. A defendant’s right to effective assistance of counsel 21 derives from the Sixth Amendment, which provides that “[i]n all criminal prosecutions, the 22 accused shall enjoy the right. . . to have the Assistance of Counsel for his defense.” U.S. Const. 23 Amend. VI. “The Sixth Amendment right to counsel is the right to have effective assistance of 24 counsel.” People v. Meseral, 2014 Guam 13 ¶ 44 (quoting Strickland v. Washington, 466 U.S. 25 668, 686 (1984)). Guerrero bears the burden of proof to demonstrate that his trial counsel was 26 constitutionally inadequate. See Jernigan v. Collins, 980 f.2d 292, 296 (5th Cir. 1992). 27 Under Strickland, a two-part test is “employed to determine whether a defendant was 28 denied the effective assistance of counsel.” Meresal, 2014 Guam 13 ¶ 44 (citing People v. Ueki,
Page 2 of 5 1 1999 Guam 4). To prove ineffective assistance of counsel, the defendant “must establish that 2 counsel’s performance was deficient; then he must show that such deficiency prejudiced his 3 defense so as to deprive him of a fair trial. The benchmark for judging any claim of 4 ineffectiveness is whether counsel’s conduct so undermined the proper functioning of the 5 adversarial process that the trial cannot be relied on as having produced a just result.” Id. at ¶ 45 6 (quoting Strickland, 466 U.S. at 686-87). 7 Here, Guerrero argues that his Attorney Kegerreis was “deficient” under the first prong 8 of the ineffective assistance of counsel test because Kegerreis failed to adequately prepare for 9 the case or call a person named Michael Guzman Jr. as a witness in Guerrero’s favor during 10 trial. Attorney Kegerreis was unable to recall at the Evidentiary Hearing when his first time 11 meeting Guerrero was, nor when he discussed trial strategy with him. 12 Guerrero argues that Guzman was involved with the Ford Fusion Guerrero was accused 13 of stealing and should have been called as a witness trial. For Attorney Kegeneis to have been 14 “deficient” as trial counsel there must be a Guzman whom Attorney Kegerreis could have called 15 as a witness to testify on Guerrero’s behalf, but failed to do so. From Mr. Kegerreis’ testimony 16 and the record at trial, Guzman was unable to be located by either the defense or the People of 17 Guam at that time. Further, while the existence of Guzman is the primary issue of the instant is petition filed in 2017, no further evidence has been presented that he actually exists, except for 19 Guerrero’s testimony at the Evidentiary Hearing. A “deficiency” cannot be demonstrated 20 without affirmative evidence concerning what the alleged “missing witness” could have added
21 to a defendant’s defense at trial. See, e.g., Parks v. Carey, 100 Fed. Appx. 611, 613 (9th Cir. 22 2004) (“Courts routinely reject ineffective assistance claims based on a failure to investigate 23 where the petitioner fails to demonstrate what further investigation would have revealed.”). 24 Even if Guzman exists and was located in time for the jury trial, there has been no 25 demonstration that he would actually agree to come into court and testify on Guerrero’s behalf.
26 See e.g., Battle v. Armontrout, 814 Supp. 1412, 1419 (E.D. Mo. 1993) (“it is the movant’s 27 burden to establish that the witness could be located through reasonable investigation, that he
28 would have testified if he had been called as a witness, and that his testimony would have
Guerrero v. Lanorena Case No. SP0122-17 Decision and Order
- Page3of5 1 provided a viable defense.”). Guerrero argues that Guzman committed the theft of the Ford 2 Fusion; thus at trial, he would be questioned on such issue. Guzman could then invoke his right 3 under the Fifth Amendment to remain silent to prevent his own exposure to any criminal 4 liability. Guerrero has not demonstrated that calling Guzman, if found, would actually be able 5 to assist his case at trial; therefore it cannot be said that Attorney Keggereis was “deficient” in 6 failing to call Guzman as a witness, and Guerrero fails to meet the first prong of the Strickland 7 test. 8 Lastly, Guerrero was acquitted of the charge of Theft of a Motor Vehicle (As a Second 9 Degree felony), the offense that he alleges that Guzman is guilty of. Guenero implicates 10 Guzman as the person who stole the Ford Fusion from Guam Auto Spot on November 16, 2014. ii Although he was convicted of the charge of Theft by Receiving (As a Second Degree Felony) 12 based on his possession of the car two days later, Guerrero testified at trial that Guzman’s 13 involvement in the case was allowing Guerrero to borrow the vehicle, which Guzman already 14 had in his possession on November 18, 2014. Guerrero testified that he did not inspect the new is vehicle, and did not question why Guzman, who was described as unemployed and recently
16 operating a different motor vehicle, was in possession of the Ford Fusion. See Jury Trial Tr. at 17 108-121; 127-28, Jan. 6, 2015. Guerrero admitted that he fled from the police when they tried 18 to effectuate a traffic stop. Id. at 123-26. Therefore, Guerrero cannot demonstrate that he was 19 “prejudiced” by Guzman not being called to testify in his case. See Harrington v. Richter, 562 20 U.S. 86 (2011) (“With respect to prejudice, a challenger must demonstrate a reasonable 21 probability that, but for counsel’s unprofessional errors, the result of the proceeding would have 22 been different.”); Romero v. Morgan, 271 f.Appx 673, 674-75 (9th Cir. 2008) (finding no
23 prejudice where defendant was acquitted of certain charges); United States i.’. Maisonet, 45 24 F.Appx 74, 76 (2d Cir. 2002) (finding no prejudice where evidence not produced related to 25 charges for which defendant was acquitted of). As Guerrero has not met either prong of the 26 Strickland test in this matter, the Court must DENY the Petition for Writ of Habeas Corpus. 27 1I 28 II
Gtterrero v. Lamorena Case No. 8P0122-17 Decision and Order
Page4of5 1 CONCLUSION 2 For the foregoing reasons, the Court hereby DENIES the Petition for Writ of Habeas 3 Corpus. 4 u iazcta IT IS SO ORDERED this day of March, 2019. 5
8 HONORABLE VERNON P. PEREZ Judge, Superior Court of Guam 9
ii SERVICE VIA COURT BOX 12 I acknowledge that a copy of the original hereto was placedin the court box of: 13 • 4r g&jw 14 Datec.1JgjlTime: 15 U.d’JM. Pe.’e Deputy Clerk, Superior Court of Guam 16
1$
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