Perry v. People

Opinion

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IN THE SUPERIOR COURT OF GUAM

DOYLE L. PERRY, SPECIAL PROCEEDINGS no. SP0074-21

Petitioner,

vs. DECISION AND ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND SETTING PEOPLE OF GUAM, BRIEFING SCHEDULE Respondent.

This matter is before the Honorable Dana A. Gutierrez based on Petitioner Doyle L.

Perry's ("Petitioner") Motion for Appointment of Counsel. Respondent People of Guam

("Respondent") is represented by the Office of the Attorney General, by and through Assistant

Attorney General Marianne Woloschuk, and Petitioner Doyle L. Perry ("Petitioner") is pro Se.

Upon a review of the applicable law and in the interest of judicial economy, the Court hereby

DENIES Petitioner's Motion for Appointment of Counsel and sets a briefing schedule on

Respondent's Motion to Dismiss Petition for Writ of I-Iabeas Corpus.

BAC KGROU N D

In People v Doyle Lamont Perry, Criminal Case No. CF0230-06, a jury convicted the

Petitioner of the following charges: 1) Three Counts of First Degree Criminal Sexual Conduct

(As a First Degree Felony), 2) Three Counts of Second Degree Criminal Sexual Conduct (As a

First Degree Felony); 3) Three Counts of Third Degree Criminal Sexual Conduct (As a Second

Degree Felony), 4) Assault With Intent to Commit Criminal Sexual Conduct (As a Third Degree I

DECISION AND ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND SETTING BRIEFING SCHEDULE SP0074-21;Doyle L. Perry v. People of Guam

Felony); 5) Aggravated Assault (As a Second Degree Felony), and 6) Terrorizing (As a Third

Degree Felony). Judgment (Nov. 13, 2007). The Petitioner was sentenced to serve a total of

fifty-one (51) years imprisonment. Id.

The Petitioner appealed and argued that the trial court committed error in its final jury

instructions in reciting the allegations of the indictment and by instructing that the government

needed to prove at least one act for each charge, as opposed to clearly instructing that all

essential elements must be proved beyond a reasonable doubt. People v. Perry, 2009 Guam 4 1]

2. The Guam Supreme Court held that although the jury instructions were flawed, the error was

not preserved at trial and thus was subject to a plain error standard of review. Id, at 1] 50. Under

the plain error standard of review, the Guam Supreme Court ultimately held that the Petitioner

failed to meet his burden of showing that the error affected his substantial rights and therefore

the Md court's verdict was affirmed. Id.

On May 25, 2021, Petitioner tiled a Petition for Writ of Haber Corpus alleging

ineffective assistance of counsel ding his trial. Petition, at 3 (May 25, 2021). Petitioner

simultaneously filed a Motion for Appointment of Counsel and a Motion to Proceed in Forma

Paupers. The Motion to Proceed in Forma Pauperis was granted by the Honorable Alberto C.

Lamorena on May 25, 2021. Respondent tiled their Opposition to the Motion for Appointment

of Counsel on July 26, 2021 and Petitioner tiled his Reply to Respondent's Opposition on August

11, 2021. The Court took thematter under advisement and now issues this decision and order.

DISCUSSION

The Local Rules of the Superior Court require the Court to appoint legal counsel in

certain circumstances but grant the Court discretion to appoint counsel in other situations.

2 I II

DECISION AND ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND SETTING BRIEFING SCHEDULE SP0074-21;DoyleL. Penny u People of Guam

Appointment of counsel is mandatory for persons financially unable to obtain adequate

representation who are "entitled to appointment of counsel under the Sixth Amendment to the

United States Constitution, or facing loss of liberty and Guam law, the United States

Constitution, or the applicable provision of the Organic Act[.]" MR 1.1.1 (a)(4). Appointment

of counsel is discretionary for persons financially unable to obtain representation and whose

"rights under the United States Constitution (or the Organic Act) may be substantially infringed

without the appointment of counsel." MR 1.1.1 (b)(3).

A. Appointment of Counsel in Habeas Proceedings Is Not Mandatory.

The Sixth Amendment of the United States Constitution provides that an accused shall

enjoy the right to have the "assistance of counsel for his defense." U.S. Const. Amend. VI.

However, "[t]here is no constitutional right to an attorney in state post-conviction proceedings."

Coleman u 771ompson, 501 U.S. 722, 754 (1991) (citation omitted). "Although the federal

Constitution requires that counsel be appointed for indigent criminal defendants when a

conviction results 'm imprisonment, this requirement does not extend, as a federal constitutional 19

matter, to post conviction collateral attacks on a conviction or sentence in state or federal court.

Habeas Corpus Resource Center u US. Dept. 0fJustice, 816 F.3d 1241, 1244 (9th Cir. 2016)

(citing Alabama u Shelton, 535 U.S. 654, 661-62 (2002)). Accordingly, the mandatory

provisions of MR 1.1.1 do not apply to this proceeding.

B. The Court Has Discretion to Appoint Petitioner Counsel.

If the Court finds that Petitioner's rights may be substantially unhinged absent legal

representation, the Court may exercise its discretion to appoint Petitioner counsel. MR

1.1.1(b)(3).

3 DECISION AND ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND SETTING BRIEFING SCHEDULE SP0074-21;Doyle L. Perry u People ofGuum

In deciding whether to appoint counsel in a habeas proceeding, the Md court must evaluate the likelihood of success on the merits as well as the ability of the 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 underlying claim, but are inextricably enmeshed with them.

Weygandt u Look, 718 F.2d 952, 954 (9th Cir. 1983). In applying this standard, the Court

considers whether Petitioner may likely succeed and whether the issues are simple enough for

Petitioner to articulate them pro Se.

1. Likelihood of Success.

The likelihood of Petitioner's success on the merits is not strong in this case. Petitioner's

habeas proceeding is based on an allegation of ineffective assistance of counsel. Petition, at 3.

To establish ineffective assistance of trial counsel, a petitioner must show: 1) his counsel's

performance was deficient in that it was objectively unreasonable under previous professional

norms, and 2) it prejudiced his defense. Strickland u Washington, 466 U.S. 668, 687-88 (1984).

Here, Petitioner's claim of ineffective assistance of counsel is based on Petitioner's

assertion that his attorney failed to "provide an expert witness for defense to rebut the

prosecution's DNA witness." Petition, at 3 . In Leavitt u Arave, the Ninth Circuit held that the

petitioner did not sufficiently demonstrate ineffective assistance of counsel under the standard

established by Striekland u Washington where the Md attorneys declined to call their client's

(i.e. the defendant at the trial and the petitioner at the habeas proceeding) expert witness. Leavitt

u Agave, 682 F.3d 1138, 1141 (9th Cir. 2012). The Leavitt Court reasoned that the petitioner's

allegation of ineffective assistance of counsel based on this claim failed because the petitioner

did not show that the result of the trial would have been different if his expert had testified. Id.

Further, "while the Constitution requires that a criminal defendant receive effective

4 DECISION AND ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND SETTING BRIEFING SCHEDULE SP0074-21;Doyle L. Pens u People ofG14am

assistance of counsel, the presentation of expert testimony is not necessarily an essential

ingredient of a reasonably competent defense." Benin v Calderon, 59 F.3d 815, 834 (9th Cir.

1995), see, e.g., Warfield V. Frauenheim, 2020 W L 8084326, at *9, n. 7 (C.D. Cal. 2020) (an

attorney's decision not to call a witness constitutes a matter of tnal tactics that a court in a habeas

proceeding should not second-guess); US. u Harden, 846 F.2d 1229, 1232 (9th Cir. 1988)

(decision not to call witness to testify was not unreasonable).

Although Petitioner alleges that the testimony of an expert on his behalf "may have

convinced the jury that the DNA evidence was misleading for it is the only physical evidence

from the prosecution," Petitioner does not demonstrate that his purported expert's testimony

would have changed the outcome of his trial. In fact, a review of the Guam Supreme Court's

opinion regarding Petitioner's tnal reveals that the People's expert apparently did explain that

there could have been other "possible contributors" to the DNA evidence. Compare People u

Perry, 2009 Guam 4 1] 44 (summarizing the expert's testimony), with Petition, at 3 (alleging that

the People's expert "may have drawn the wrong conclusion from the evidence since there was

[sic] at least 3-4 possible contributors to DNA evidence[.]"). Thus, the Court has doubts about

Petitioner's likelihood of success on the merits.

z. Complexity of the Issues.

The Ninth Circuit holds that there is no constitutional right to counsel in habeas

proceedings. Eon in u Vasquez, 999 F.2d 425, 429 (9th Cir, 1993). There is a limited exception

to this rule where "the case is so complex that due process violations will occur absent the

presence of counsel." Id. at 428. This analysis depends "on the particular circumstances of each

case." Rodgers u WA. M erkle, 1995 W L 108196, at *3 (N.D. Cal. 1995). In determining

5 DECISION AND ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND SETTING BRIEFING SCHEDULE SP0074-21;Doyle L. Perry v People of Guam

whether "the complexities of the case are great," the Court must "consider whether the petitioner

is capable of presenting his contentions in a coherent and forceful manner." Id. Even where a

p et it ion er arg u es t h at " h e h as n o leg al t rain in g , h as lim it ed ed u c at ion , h as d iffic u lt y

u n d erst an d in g t h e n at u re of t h e p roceed in g s, " an d su ffers from "p h ysical an d m en t al

disabilities," the issues of the habeas proceeding may not be sufficiently complex to warrant the

appointment of counsel. Id.

In this case, upon a review of the Petition and Motion for Appointment of Counsel, the

Court does not find the issues raised ire this matter to be sufficiently complex. Essentially,

Petitioner's habeas proceeding is based on his contention that his attorney's conduct may have

fallen below the objective standard of reasonableness by failing to provide a rebuttal expert

witness. Petition, at 3. An allegation of ineffective assistance of counsel is not an intrinsically

"complex" issue, and in order to warrant the appointment of counsel, the Petitioner must show

that the complexity of the issues is exceptional. See, e.g.,Benin, 999 F.2d at 429, Rodgers, 1995

WL 108196, at *3, US. u Tapia, 991 F.Supp. 1144, 1147 (D.S.D. 1998) (denying appointment of

counsel because petitioner's sole claim of ineffective assistance of counsel does not require

complex legal reasoning or analysis).

Ultimately, this Court has doubts about Petitioner's likelihood of success on the merits

and finds that the issues raised in this case are not exceptionally complex. Therefore, in the

interest of judicial economy, the Court will not exercise its discretion to appoint counsel for

Petitioner in this matter.

CQNCLUSIQN

In accordance with the applicable law and for the foregoing reasons, the Court hereby

6 DECISION AND ORDER DENYING MOTION FOR APPODJTMENT OF COUNSEL AND SETTING BRIEFING SCHEDULE SP0074-21; Doyle L. Perry v. People of Guam

ORDERS that:

1. Petitioner's Motion for Appointment of Counsel is DENIED,

2. Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus is no longer

held in abeyance;

3. Any oppositions to Respondent's Motion to Dismiss Petition for Writ of Habeas

Corpus shall be filed within twenty eight (28) days of service of this Order. As Petitioner is

confined at the Guam Department of Corrections and must mail court filings, if he files an

opposition, such opposition shall be deemed timely if postmarked no later than twenty eight (28)

days aim service of this Order is effected upon him,

4. Any reply to such opposition shall be filed within fourteen (14) days of service

of the opposition; and

5. The Court will schedule the matter for hearing upon a review of the filings, if

necessary.

n g NDV 2021 SO ORDERED :

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