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COURT OF OF GUAM GUAM FLORENDO KUSTERBECK, KUSTERBECK, )) SPECIAL PROCEEDINGS PROCEEDINGS CASE CASENO. no. )) SP0080-25 8 Petitioner, ) 9 ) vs. )) 10 ) l11l ROSANNA VILLAGOMEZ-AGUON, )) DECISION AND ORDER CHIEF PROBATION PROBATION OFFICER, ) RE. VERIFIED PETITION FOR WRIT PROBATION SERVICES SERVICES DIVISION, )) OF HABEAS CORPUS IUDICIARY JUDICIARY OF LEO S. OF GUAM; LEO s. DIAZ, DiAz, ) 13 MARSHAL MARSHAL OFOF THE COURTS, )) 14 MARSHALS MARSHALS SERVICES DWISION, SERVICES DIVISION, ) JUDICIARY OF GUAM; JUDICIARY GUAM; COLONEL )) 15 ALAN p. ALAN P. BORJA, WARDEN, GUAM WARDEN, GUAM ) DEPARTMENT DEPARTMENT OF OF CORRECTIONS, ) 16 )) 17 Respondents. Respondents. )) w 18 INTRODUCTION 19
20 This matter is is before before the the Honorable Honorable Maria Maria T. T. Cenzon on Gilberto Florendo Kusterbeck's
21 21 ("Petitioner") ("Petitioner") Verified VerifiedPetition Petition for for Writ WritofofHabeas Habeas Corpus Corpus (the "Petition") "Petition") filed filed on on May May 23, 23, 2025. 22 22 Representing the Petitioner Representing the Petitioner isis Attorney Attorney Peter C. C. Perez ("Counsel"). ("Counsel").The Thenamed namedRespondents Respondents in in 23 this this matter are Rosanna matter are Villagomez-Aguon, Chief Probation Rosanna Villagomez-Aguon, Probation Officer, Officer, Probation Probation Services Services 24 24 Di vi si on, Judi Division, Judiciary of of Guam, Guam; Leo Leo S. S. Di az, Marshal Diaz, Marshal ofofthe the Courts, Courts, Marshal Marshalss Servi Services Division, 25
26 26 Judiciary i a ry of o Guam;, aand Co l o n AAlan Colonel l a n PP.. BBorja, o rj a , WWarden, a rd e n , GGuam u a m De p a rt m e n t oof Department f Co rre c t i o n Corrections.
27 27 Having Having reviewed reviewedthe thePetition Petitionand andthe theapplicable applicablestatutory statutoryand and case case law, the Court Court now nowissues issues its 28 28
People v, v. Kusterbeek, Kusterbeck, Special Special Proceedings No. SP00S0-25 Proceedings No. SP0080-25 Decision Decision and and Order Order Re. Re. Verified Verified Petition Petition for for Writ WritofofHabeas Habeas Corpus Corpus P age Il of4 Page off l Decision and Order DENYING the Petitioner's DENYING the Petitioner's Petition Petition and DISMISSING the Petition without without 2 . . prejudice. prejudice. 3 RELEVANTPROCEDURALANDFACTUALBACKGROUND RELEVANT PROCEDURAL FACTUAL BACKGROUND 4
In People v. In People v. Kusterbeck, Criminal Case Kusterbeck, Criminal Case No. No. CF0142-20, CF0142-20, on August 25, 2022, aa jury of jury of 5
6 6 his peers found the Petitioner guilty of of the the following following offenses: offenses: the the First First Charge Charge of of First First Degree
7 7 Sexual Conduct Criminal Sexual Conduct (As (As aa First First Degree Felony), Felony), and and Two Counts Counts of ofthe the Second Charge Charge of of 8 Second Second Degree Degree Criminal Sexual Conduct Criminal Sexual Conduct (As aa First First Degree Degree Felony). See at 7. The See Petition at 9 Petitioner was Petitioner was sentenced sentenced to the following: as to the as to to the the First First Charge, Charge, eighteen eighteen (18) (18) years' years' 10 lO
11 11 imprisonment at the Department of Corrections, Corrections; as to the Second Charge, Count Second Charge, Count One, One, five five (5)
12 to run imprisonment to years' imprisonment run concurrent concurrent to to all all other other sentences sentences imposed, imposed; as to the Second Charge, 13 Count Two, five five (5) (5) years' years' imprisonment imprisonment to to run runconcurrent concurrent to to all all other othersentences sentences imposed. imposed. Id. Id 14 14 appealed his The Petitioner appealed his conviction in People People v. v. Kusferbeck, 3, and the Guam Kusterbeck, 2024 Guam 3, 15 Supreme Court affirmed his convictions. Id. at 9. On October Supreme October 18, 18, 2024, 2024, the Petitioner Petitioner filed a 16
17 17 Petition for Petition for Rehearing Rehearing before before the the Supreme Court of of Guam, which which denied denied it it on March March 26, 26, 2025.
18 18 Id. According to the Petition, Defendant has been on release during his appeal, appeal, and is ordered to 19 self-surrender self-surrender on on June June 2, 2025. Petition Petition at at 9, ly Jr 20. 20 20
21 21 DISCUSSION
22 22 The Petitioner is entitled to habeas habeas corpus corpusrelief relief if if he has hasbeen been"unlawfully "unlawfully imprisoned or
23 restrained of restrained of his his liberty." liberty." 88 GCA GCA §§ 135.10. 135.10. The The Petitioner admits that, Petitioner admits that, at the time at the time of of filing filing this this 24 24 Verified Verified Petition, "he "he has been restrained restrained of of his liberty liberty or is is subject to unlawful unlawful imprisonment imprisonment by 25 the ... Respondents." Respondents." Petition Petition at at 2, Jrly 2. 2. However, However, Petitioner Petitioner is not in in custody custody but is is released on 26
27 27 conditions pending his conditions pending his appeal. appeal.Id. Id He is is ordered ordered "to "to self-surrender self-surrender to the the Department Department of
People v. v. Kusterbeck, Kusterbeck, Special Special Proceedings No. SP00S0-25 Proceedings No. SP0080-25 Decision Decision and and Order Re. Verified Order Re. Verified Petition Petition for for Writ WritofofHabeas Habeas Corpus Corpus Page Page 22ofoff 4 1 Corrections on Corrections on June June 2, 2025, pursuant pursuant to to his his sentence sentenceas asordered orderedininthe theJudgment JudgmentofofConviction." Conviction." 2 Id. Id. at at 9, 9, lr 20. Jr 20. 3 As Section 135.10 provides, habeas corpus As reliefisis appropriate corpus relief appropriate ififthe the Petitioner Petitionerhas has been 4
unlawfully imprisoned unlawfully or restrained imprisoned or restrained of ofhis his liberty. liberty. The The Petitioner Petitioner himself himselfadmits admits that that he is is not in 5
6 custody of DOC, the custody DOC, but but attempts attempts to convolute convolute the statute statute by by arguing that it applies applies where a
7 7 unlawfulimprisonment. Petitioner is "subject to" unlawful imprisonment. Petitioner Petitioner has has submitted submitted no no law law in support of in support of 8 expanding Guam's Guam's Writ W rit of As such, ofHabeas Corpus laws. As such, because becausePetitioner Petitionerisisnot not"in "in custody" custody" 9 of of the the Department of Corrections (or in the custody Department of custody of of the the Chief Chief of of Probation or or the the Marshal Marshal of of 10 10
11 Petition is DENIED. See, May v. People the Courts), the Petition People of ofGuam, Guam, 2005 2005 Guam Guam 17, ,r (Supreme 17, 1]31
12 12 Court ruling itit lacked jurisdiction to hear appeal jurisdiction to appeal of corpus petition of habeas corpus because May petition because May was not 13 in in the custody of the prison system; system, therefore, therefore, does doesnot notfit fit the the"in "in custody" requirement of ofhabeas habeas 14 corpus. corpus. 15 With regard to the the argument argument that Respondents Villagomez-Aguon and Respondents Villagomez-Aguon and Diaz Diaz "subject[] 16
17 Petitioner Petitioner to to restrictions restrictions on on his his liberty, liberty, to to release release conditions, conditions, to to limitations limitationson onhis his movements movements and
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my !'§___'»F3°3~_; ;. Sm pigeon iEi'8?I.,*E§. l 5}{. @J»*r-5? 2 28E§J§?§-°2 2825 JUN -2 35; Mi 8:8: 2% 2, 3 arualm' CLERKUF OFE;§1L8§? CG1JRT 4
COURT OF OF GUAM GUAM FLORENDO KUSTERBECK, KUSTERBECK, )) SPECIAL PROCEEDINGS PROCEEDINGS CASE CASENO. no. )) SP0080-25 8 Petitioner, ) 9 ) vs. )) 10 ) l11l ROSANNA VILLAGOMEZ-AGUON, )) DECISION AND ORDER CHIEF PROBATION PROBATION OFFICER, ) RE. VERIFIED PETITION FOR WRIT PROBATION SERVICES SERVICES DIVISION, )) OF HABEAS CORPUS IUDICIARY JUDICIARY OF LEO S. OF GUAM; LEO s. DIAZ, DiAz, ) 13 MARSHAL MARSHAL OFOF THE COURTS, )) 14 MARSHALS MARSHALS SERVICES DWISION, SERVICES DIVISION, ) JUDICIARY OF GUAM; JUDICIARY GUAM; COLONEL )) 15 ALAN p. ALAN P. BORJA, WARDEN, GUAM WARDEN, GUAM ) DEPARTMENT DEPARTMENT OF OF CORRECTIONS, ) 16 )) 17 Respondents. Respondents. )) w 18 INTRODUCTION 19
20 This matter is is before before the the Honorable Honorable Maria Maria T. T. Cenzon on Gilberto Florendo Kusterbeck's
21 21 ("Petitioner") ("Petitioner") Verified VerifiedPetition Petition for for Writ WritofofHabeas Habeas Corpus Corpus (the "Petition") "Petition") filed filed on on May May 23, 23, 2025. 22 22 Representing the Petitioner Representing the Petitioner isis Attorney Attorney Peter C. C. Perez ("Counsel"). ("Counsel").The Thenamed namedRespondents Respondents in in 23 this this matter are Rosanna matter are Villagomez-Aguon, Chief Probation Rosanna Villagomez-Aguon, Probation Officer, Officer, Probation Probation Services Services 24 24 Di vi si on, Judi Division, Judiciary of of Guam, Guam; Leo Leo S. S. Di az, Marshal Diaz, Marshal ofofthe the Courts, Courts, Marshal Marshalss Servi Services Division, 25
26 26 Judiciary i a ry of o Guam;, aand Co l o n AAlan Colonel l a n PP.. BBorja, o rj a , WWarden, a rd e n , GGuam u a m De p a rt m e n t oof Department f Co rre c t i o n Corrections.
27 27 Having Having reviewed reviewedthe thePetition Petitionand andthe theapplicable applicablestatutory statutoryand and case case law, the Court Court now nowissues issues its 28 28
People v, v. Kusterbeek, Kusterbeck, Special Special Proceedings No. SP00S0-25 Proceedings No. SP0080-25 Decision Decision and and Order Order Re. Re. Verified Verified Petition Petition for for Writ WritofofHabeas Habeas Corpus Corpus P age Il of4 Page off l Decision and Order DENYING the Petitioner's DENYING the Petitioner's Petition Petition and DISMISSING the Petition without without 2 . . prejudice. prejudice. 3 RELEVANTPROCEDURALANDFACTUALBACKGROUND RELEVANT PROCEDURAL FACTUAL BACKGROUND 4
In People v. In People v. Kusterbeck, Criminal Case Kusterbeck, Criminal Case No. No. CF0142-20, CF0142-20, on August 25, 2022, aa jury of jury of 5
6 6 his peers found the Petitioner guilty of of the the following following offenses: offenses: the the First First Charge Charge of of First First Degree
7 7 Sexual Conduct Criminal Sexual Conduct (As (As aa First First Degree Felony), Felony), and and Two Counts Counts of ofthe the Second Charge Charge of of 8 Second Second Degree Degree Criminal Sexual Conduct Criminal Sexual Conduct (As aa First First Degree Degree Felony). See at 7. The See Petition at 9 Petitioner was Petitioner was sentenced sentenced to the following: as to the as to to the the First First Charge, Charge, eighteen eighteen (18) (18) years' years' 10 lO
11 11 imprisonment at the Department of Corrections, Corrections; as to the Second Charge, Count Second Charge, Count One, One, five five (5)
12 to run imprisonment to years' imprisonment run concurrent concurrent to to all all other other sentences sentences imposed, imposed; as to the Second Charge, 13 Count Two, five five (5) (5) years' years' imprisonment imprisonment to to run runconcurrent concurrent to to all all other othersentences sentences imposed. imposed. Id. Id 14 14 appealed his The Petitioner appealed his conviction in People People v. v. Kusferbeck, 3, and the Guam Kusterbeck, 2024 Guam 3, 15 Supreme Court affirmed his convictions. Id. at 9. On October Supreme October 18, 18, 2024, 2024, the Petitioner Petitioner filed a 16
17 17 Petition for Petition for Rehearing Rehearing before before the the Supreme Court of of Guam, which which denied denied it it on March March 26, 26, 2025.
18 18 Id. According to the Petition, Defendant has been on release during his appeal, appeal, and is ordered to 19 self-surrender self-surrender on on June June 2, 2025. Petition Petition at at 9, ly Jr 20. 20 20
21 21 DISCUSSION
22 22 The Petitioner is entitled to habeas habeas corpus corpusrelief relief if if he has hasbeen been"unlawfully "unlawfully imprisoned or
23 restrained of restrained of his his liberty." liberty." 88 GCA GCA §§ 135.10. 135.10. The The Petitioner admits that, Petitioner admits that, at the time at the time of of filing filing this this 24 24 Verified Verified Petition, "he "he has been restrained restrained of of his liberty liberty or is is subject to unlawful unlawful imprisonment imprisonment by 25 the ... Respondents." Respondents." Petition Petition at at 2, Jrly 2. 2. However, However, Petitioner Petitioner is not in in custody custody but is is released on 26
27 27 conditions pending his conditions pending his appeal. appeal.Id. Id He is is ordered ordered "to "to self-surrender self-surrender to the the Department Department of
People v. v. Kusterbeck, Kusterbeck, Special Special Proceedings No. SP00S0-25 Proceedings No. SP0080-25 Decision Decision and and Order Re. Verified Order Re. Verified Petition Petition for for Writ WritofofHabeas Habeas Corpus Corpus Page Page 22ofoff 4 1 Corrections on Corrections on June June 2, 2025, pursuant pursuant to to his his sentence sentenceas asordered orderedininthe theJudgment JudgmentofofConviction." Conviction." 2 Id. Id. at at 9, 9, lr 20. Jr 20. 3 As Section 135.10 provides, habeas corpus As reliefisis appropriate corpus relief appropriate ififthe the Petitioner Petitionerhas has been 4
unlawfully imprisoned unlawfully or restrained imprisoned or restrained of ofhis his liberty. liberty. The The Petitioner Petitioner himself himselfadmits admits that that he is is not in 5
6 custody of DOC, the custody DOC, but but attempts attempts to convolute convolute the statute statute by by arguing that it applies applies where a
7 7 unlawfulimprisonment. Petitioner is "subject to" unlawful imprisonment. Petitioner Petitioner has has submitted submitted no no law law in support of in support of 8 expanding Guam's Guam's Writ W rit of As such, ofHabeas Corpus laws. As such, because becausePetitioner Petitionerisisnot not"in "in custody" custody" 9 of of the the Department of Corrections (or in the custody Department of custody of of the the Chief Chief of of Probation or or the the Marshal Marshal of of 10 10
11 Petition is DENIED. See, May v. People the Courts), the Petition People of ofGuam, Guam, 2005 2005 Guam Guam 17, ,r (Supreme 17, 1]31
12 12 Court ruling itit lacked jurisdiction to hear appeal jurisdiction to appeal of corpus petition of habeas corpus because May petition because May was not 13 in in the custody of the prison system; system, therefore, therefore, does doesnot notfit fit the the"in "in custody" requirement of ofhabeas habeas 14 corpus. corpus. 15 With regard to the the argument argument that Respondents Villagomez-Aguon and Respondents Villagomez-Aguon and Diaz Diaz "subject[] 16
17 Petitioner Petitioner to to restrictions restrictions on on his his liberty, liberty, to to release release conditions, conditions, to to limitations limitationson onhis his movements movements and
18 to supervision, the Petitioner has cited no no applicable case caseauthority authority supporting supporting the the extension extension of of 19 Guam's Guam's habeas provisions to restraints on liberty imposed on Petitioner, such as habeas corpus provisions as pre-trial pre-trial 20 20 release conditions conditions or or conditions conditions restricting restrictingmovement movementororactivity activitypending appeal.11 On pendingappeaL On this this basis, 21 21
the Petition Petition is DENIED. 22
23 23 Finally, Finally, Section Section 135.14 135.14 requires that a copy of the petition petition must must "in "in all all cases cases be served
24 upon the Attorney Attorney General General at least 24 hours before the time time at which said writ writ is made returnable 25
26 26
27 '1 This ThisCourt Courtisisaware awarethat thatthe the Ninth Circuithas NinthCircuit haspreviously previouslydetermined detenninedthat that such such restraints restraints on liberty liberty pending pending adjudication, probation adjudication, probation oror parole parole satisfy satisfythe the "in custody"requirement, "incustody" requirement; however, however, suchsuch principle principlehas hasnot notbeen been adopted adopted 28 28 by by the Guam Supreme Court and Supreme Court andthe theCourt Courtwill will not extend thelaw extend the law to to include include such conditional release conditions. Instead, Instead, the thestrict strictinterpretation interpretationof"in of "in custody" custody" applies -whowho has has custody of the corpus. corpus. In this instance, instance, Petitioner Petitioner is is in in the the custody custody ofofnone none of ofthe the Respondents. Respondents.
People People v. v. Kusterbeck, Kusterbeck, Special Special Proceedings Proceedings No. SP0080-25 SP00S0-25 Decision and Order Re. Verified Verified Petition Petition for for Writ Writof ofHabeas Habeas Corpus Corpus Page Page33 of4 off and no application for such writ can be heard without proof of such service in cases where 2 such service is required." See 8 GCA § 135.14. (emphasis added). Without proof of service, the 3 Court cannot proceed to hear the Petition without proof of service. Indeed, the Petitioner has 4 provided no proof of service upon any interested person. 5
6 Here, the Petitioner has not filed an affidavit of service or some form of proof of service
7 that the Office of the Attorney General has been served a copy of the Petition. Based on a plain 8 reading of the statute, the Court cannot proceed to hear the merits of the Petition. 2 Therefore, on 9 these additional grounds, the Petition must be DENIED. 10
11 CONCLUSION
12 For the reasons set forth above, the Court hereby DENIES Petitioner's Verified Petition
13 for Writ of Habeas Corpus. 14 SO ORDERED this 30th day of May, 2025. 15
17 HONORABLE MARIA/I'-/CENZON -.....:.· .. - 18 Judge, Superior Court of'Guam·'.·_c 19
I acknowledge that an electronic copy of the original was e-mailed to: 21
23 " ~ ! IJ .iL{fate, 2 ,__'JI!?~ .._ me: -t-,,.,,- M/'J ,/ ;>r,1,11
24 &dn;:iJt, 1fe~ Deputy Clerk, Superior Coun o: r,.
26 2 Certainly, there is precedent for a denial of a petition based on procedural defectiveness. In Ignacio v. People, 2012 27 Guam 14, the Guam Supreme Court denied a habeas corpus petition because the petition was untimely based on California authority. See Ignacio, 2012 Guam 14 ,i 14; see also Aguon v. Beckron, 2020 Guam 7 i!i! 20-28 (Petition 28 was denied due to a lack of justification for the substantial delay other than broad assertions). See also Eli Charfaruros Quintanilla v. Allen Borja, et al., Special Proceedings No. SP162-24, Decision and Order Petition for Writ of Habeas Corpus (Mar. 24, 2025).
People v. Kusterbeck, Special Proceedings No. SP0080-25 Decision and Order Re. Verified Petition for Writ of Habeas Corpus Page 4 of 4