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4 DISTRICT COURT OF GUAM 5 TERRITORY OF GUAM 6

7 FRANK EDWARD PANGELINAN, CIVIL CASE NO. 12-00006 8 Petitioner, 9 vs. ORDER

10 JOSE A. SAN AGUSTIN, Director of Guam Department of Corrections, 11 Respondent. 12 13 Before the court are a Motion to Dismiss (“Motion”) filed by Respondent and a request 14 for assistance of counsel filed by Frank Edward Pangelinan (“Petitioner”). See ECF Nos. 6 and 15 25. After reviewing the parties’ briefs, and relevant cases and statutes, the court hereby 16 GRANTS the Motion to Dismiss and DENIES Petitioner’s request. 17 A. Background 18 According to the Petition for Writ of Habeas Corpus (“Petition”), Petitioner was 19 convicted on December 30, 1998 of two counts of aggravated murder and other related charges 20 in the Superior Court of Guam. See Pet. ¶¶ 2(a), 5, ECF No. 1. On February 2, 1999, Petitioner 21 was sentenced to a term of life imprisonment without parole plus additional time. Id. at ¶¶ 2(b), 22 3. On January 28, 2000, the Supreme Court of Guam affirmed the conviction. Id. at ¶ 9. 23 On March 13, 2001, Petitioner filed a habeas petition in the Superior Court of Guam, 24 raising the following claims: (1) withholding of discoverable Brady material; (2) withholding of 1 witness impeachment evidence; (3) improper Anders no-merit brief requirement; (4) ineffective 2 assistance of appellate counsel; (5) denial of a fair trial due to lack of an appellate panel; and (6) 3 denial of due process of law. See Pet. ¶ 11. The habeas petition was summarily denied on May 4 20, 2003. Thereafter, Petitioner did not appeal the denial or petition the Supreme Court of Guam 5 for writ of habeas corpus. Id. 6 On May 1, 2012, Petitioner filed the instant Petition before this court. See ECF No. 1. 7 Therein, he raised the following grounds: (1) ineffective assistance of lead defense counsel 8 during trial; (2) appearance of impropriety when co-counsel represented Petitioner on appeal;

9 and (3) ineffective assistance of lead defense counsel in failing to raise an affirmative defense. 10 See Pet. ¶ 12. 11 B. Appointment of Counsel 12 Petitioner requests the court for assistance in this matter as he is “physically and 13 financially incapable of finding [his] own counsel.” See Pet’r’s Req., ECF No. 25. In the court’s 14 order dated September 25, 2013 (ECF No. 20), the court denied Petitioner’s previous request for 15 appointment of counsel because at this point in the proceeding, Petitioner only has to respond to 16 Respondent’s arguments that the Petition should be dismissed due to failure to exhaust 17 administrative remedies and untimeliness, which are not complex legal issues. In the same order, 18 the court gave Petitioner guidance as to what he should include in his response to the Motion to

19 Dismiss. See Order at 2 n.1, ECF No. 20. As nothing has occurred which would alter the court’s 20 previous analysis with respect to this issue, the court DENIES Petitioner’s request. 21 C. Motion to Dismiss 22 Respondent moves the court to dismiss the Petition for failure to exhaust administrative 23 remedies and untimeliness. See Mot., ECF No. 6. 24 1 1. Exhaustion of State Remedies 2

provides that “[a]n application for a writ of habeas corpus on behalf of 3 a person in custody pursuant to the judgment of a State court shall not be granted unless it 4 appears that the applicant has exhausted the remedies available in the courts of the State.” 28

(b)(1)(A). “Exhaustion requires the petitioner to ‘fairly present’ his claims to the 6 highest court of the state” and “is determined on a claim-by-claim basis.” Cooper v. Neven, 641

, 326 (9th Cir. 2011) (quoting O’Sullivan v. Boerckel,

(1999)); 8 Insyxiengmay v. Morgan,

(9th Cir. 2005). “In order to fairly present a claim,

9 the petitioner must clearly state the federal basis and federal nature of the claim, along with 10 relevant facts.” Cooper, 641 F.3d at 327 (citing Anderson v. Harless,

, 6–7 (1982); 11 Picard v. Connor,

, 275–76 (1971); Weaver v. Thompson,

(9th 12 Cir. 1999)). 13 Here, Petitioner has not exhausted the available state remedies because he failed to 14 present his habeas claims to the Supreme Court of Guam. Petitioner explains that these claims 15 were not presented because “appellate counsel stated that there is no appealable issue.” Pet. ¶ 13. 16 “An exception is made to the exhaustion requirement only if there is no opportunity to obtain 17 redress in state court or if the corrective process is so clearly deficient as to render futile any 18 effort to obtain relief.” Dickens v. Ryan,

, 1073 (quoting Duckworth v. Serrano,

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(1981)). There is no indication that appealing the Superior Court of Guam’s denial 20 of the habeas petition or petitioning the Supreme Court of Guam for writ of habeas corpus was 21 unavailable or that the corrective process is in any way deficient. Accordingly, Petitioner has 22 failed to exhaust the available state remedies, and the Motion to Dismiss is GRANTED on this 23 ground. 24 1 2. Statute of Limitations 2 There is a one-year statute of limitations for an applicant to file a federal petition for writ 3 of habeas corpus.1 However, the limitations period is subject to statutory tolling while “a 4 properly filed application for State post-conviction or other collateral review with respect to the 5 pertinent judgment or claim is pending.”

(d)(2). 6 Here, the instant Petition was filed on May 1, 2012. The date on which Petitioner’s 7 conviction became final by conclusion of direct review was January 28, 2000, when the Supreme 8 Court of Guam affirmed the conviction and sentence. Petitioner pursued post-conviction review

9 in the Superior Court of Guam, which denied relief on May 20, 2003. As Petitioner did not seek 10 an appeal, the state post-conviction review process concluded when the period in which 11 Petitioner could file a notice of appeal expired on May 30, 2003.2 Thus, statutory tolling ended 12 on that date. 13 The limitations period is also subject to equitable tolling. Holland v. Florida,

(2010). A petitioner is entitled to equitable tolling only if the petitioner establishes 15 “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary 16 circumstance stood in his way’ and prevented timely filing.”

at 2562 (quoting Pace v. 17 DiGuglielmo,

(2005)). As discussed above, Petitioner has been given the 18

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(d)(1) provides: A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of— 20 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 21 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 22 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral 23 review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through 24 the exercise of due diligence. 2 8 GUAM CODE ANN. § 130.40 provides that “notice of appeal by a defendant shall be filed in the superior court within 10 days after the entry of the judgment or order appealed from.” 1 || opportunity to explain why he filed the Petition outside the limitations period and the court 2 || specifically indicated that he may wish to explain any actions demonstrating that he has been 3 || diligently pursuing his rights and any extraordinary circumstances beyond his control which 4 || made it impossible to timely file. See Order at 2 n.1, ECF No. 20. As Petitioner has failed to 5 || demonstrate diligence in pursuing his rights or any extraordinary circumstances, equitable tolling 6 |] 1s not applicable. 7 Statutory tolling ended on May 30, 2003, and Petitioner has not demonstrated that he is 8 |] entitled to equitable tolling. The instant Petition was filed nearly nine years after the statute of 9 || limitations began to run. Accordingly, the court finds that the Petition is untimely and the Motion 10 || to Dismiss is GRANTED on this ground. 11 D. Conclusion 12 Based upon the foregoing, the court DENIES Petitioner’s request for appointment of 13 || counsel and GRANTS Respondent’s Motion to Dismiss. 14 SO ORDERED. 15 16 /s/ Frances M. Tydingco-Gatewood nae. Chief Judge U7 ae ’ & Dated: Jan 03, 2014

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