Big time ‘ice’ trafficker’s suit vs DOC chief dismissed

The federal court has dismissed a lawsuit filed against Department of Corrections Commissioner Vincent S. Attao by a man who was tagged by authorities as a big-time methamphetamine supplier and slapped with a 28-year prison term.

In dismissing Yu Qun’s petition for a writ of habeas corpus, U.S. District Court for the NMI designated Judge Frances Tydingco-Gatewood has failed to state a claim on any of the three grounds that he has raised.

In the order issued last Thursday, Tydingco-Gatewood said Qun’s Eight Amendment claim was reviewed on the merits by the CNMI Supreme Court and that court did not unreasonably apply clearly established federal law.

The Eight Amendment prohibits cruel and unusual punishment.

Tydingco-Gatewood said Qun’s two claims regarding ineffective assistance of his trial and appellate counsel were never addressed on the merits by any CNMI court.

The judge said notwithstanding Qun’s failure to exhaust those claims, she finds that the defendant has clearly not raised a colorable claim of ineffective assistance of counsel.

Tydingco-Gatewood said Qun simply asserts that both counsel were ineffective without pleading any facts that would satisfy either prong of Strickland standard.

Under Strickland standard, to prevail on an ineffective assistance of counsel claim, a petitioner must show, first, “that counsel’s performance was deficient,” and second, “that the deficient performance prejudiced the defense.”

Tydingco-Gatewood denied as moot Qu’s other motions—for appointment of counsel and to exceed page limits in his pleadings.

In addition, the judge found that Qu has not made a substantial showing of the denial of a constitutional right.

According to court documents, Qun is currently incarcerated in the DOC. He was convicted in 2011 in Superior Court of multiple drug trafficking and related offenses. Then-Superior Court associate judge David Wiseman sentenced him to 28 years in prison.

In 2015, the Superior Court issued a limited writ of habeas corpus to allow Qun to file an appeal of his conviction. This order was based on the ineffective assistance of his trial counsel, Stephen Woodruff, who failed to file a timely appeal as Qun had requested.

With the assistance of new counsel, Qun appealed.

Saipan Tribune has no information as of Sunday as to who is defendant’s appellate counsel.

The only issue raised in the appeal was whether the 25-year mandatory minimum sentence violated the Eight Amendment.

The CNMI Supreme Court affirmed Qun’s sentence on Dec. 29, 2016, holding that it was not grossly disproportionate and therefore was not cruel and unusual.

In June 2018, Qun filed another habeas petition in Superior Court in which he asserted that he was denied due process in violation of the federal Constitution because of the ineffective assistance of both his trial and appellate counsel.

Qun argued that his trial counsel was ineffective both because of objections that he made and objections that he failed to make.

Qun’s claim that his appellate counsel was ineffective is based on that attorney’s failure to appeal his conviction as promised, instead only appealing his sentence.

In response, the Superior Court issued an order in which it held that Qun has exhausted all remedies with the District Court, thus the Superior Court is not the proper venue for this motion.

The Superior Court did not address the merits of his claims of ineffective assistance of counsel.

On Nov. 8, 2018, Qun filed a federal petition for a writ of habeas corpus with this court.

He raised the issue of ineffective assistance of appellate counsel (for failure to appeal the conviction and failure to discover the constitutional violations that occurred during the trial).

His second ground is ineffective assistance of trial counsel (for failure to make two specific objections at trial).

Qun’s last ground is that his mandatory minimum sentence violates the Eight Amendment.

Qun asserts that the CNMI courts erred in finding that his 25-year mandatory minimum sentence is not a violation of the Eight Amendment.

In dismissing Qun’s lawsuit, Tydingco-Gatewood said petitioner makes no argument that his sentence was based on an unreasonable determination of the facts in light of the evidence presented at his trial.

Therefore, Tydingco-Gatewood said reviewed to determine if Qun has plausibly stated a claim that the CNMI Supreme Court decision on his sentence was contrary to or involved an unreasonable application of clearly established federal law.

Tydingco-Gatewood said the CNMI Supreme Court issued its decision on Dec. 29, 2016, more than one year prior to Qun filing his petition for habeas corpus on Nov. 8, 2018.

The judge said “a one-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgement of a State court.”

She noted that the limitation period for Qun’s claim expired one year after the date the judgment against him became final by conclusion of direct review in the CNMI Supreme Court—which was Dec. 29, 2017.

On ineffective assistance of counsel claims, Tydingco-Gatewood said the presence of a government officer/witness at counsel table is not a per se due process violation.

Moreover, Tydingco-Gatewood said, Qun fails to allege any prejudice he suffered because of the investigator’s presence at the prosecution’s table during trial or that there is a reasonable probability that result of the proceeding would have been different had his trial counsel objected.

The judge said Qun has failed to state a plausible claim that his appellate counsel’s performance was deficient and there is reasonable probability that outcome of his appeal would have been different.