FSM 6 Intrm. 031-032

THE SUPREME COURT OF THE

FEDERATED STATES OF MICRONESIA

Cite as In re Extradition of Jano ,

6 FSM Intrm. 31 (App. 1993)

[6 FSM Intrm. 31]

In re the Extradition of MARTIN JANO,

Petitioner.

APPEAL CASE NO. P2-1993

ORDER

DISMISSING APPEAL

Submitted: February 5, 1993

Dismissed: March 3, 1993

BEFORE:

Hon. Richard H. Benson, Associate Justice, FSM Supreme Court

Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

Hon. Lyndon L. Cornelius, Temporary Justice, FSM Supreme Court*

*Chief Justice, Kosrae State Court, Lelu, Kosrae

APPEARANCES:

For the Petitioner: Marvin Hamilton, Esq.

Office of the Public Defender

P.O. Box 425

Colonia, Yap FM 96943

For the Respondent: Michael Brady, Esq.

Assistant Attorney General

Office of the FSM Attorney General

P.O. Box PS-105

Palikir, Pohnpei FM 96941

* * * *

HEADNOTE

Habeas Corpus

4 F.S.M.C. 117 gives both the trial division and the appellate division the powers to issue all writs not inconsistent with law or with the rules of civil procedure. FSM Appellate Rule 22(a) requires petitions for writs of habeas corpus be first brought in the trial division. When the circumstances have been shown to warrant, the appellate division clearly has the authority to suspend the rule. In re Extradition of Jano, 6 FSM Intrm. 31, 32 (App. 1993).

* * * *

[6 FSM Intrm. 32]

COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

On February 5, 1993, Mr. Jano filed here in the appellate division an original petition for a writ of habeas corpus. This petition was supplemented on February 8, 1993.

The petitioner and the FSM Attorney General's office were invited to submit points and authorities concerning whether, in the light of FSM Appellate Rule 22(a), the appellate division may entertain an original petition for such a writ. Both have responded. We have considered carefully their memoranda.

This matter is now before us in the unusual posture in which the petitioner now asserts that an original petition for a writ of habeas corpus should only be heard in the trial division. Petitioner, however, has not moved for dismissal. We did not find the reasoning of the government that FSM Appellate Rule 22(a) should be suspended for this petition persuasive, although such suspension is clearly within our authority. FSM App. R. 2. We therefore raise the issue of dismissal on our own motion.

Section 117 of Title 4 gives both the trial division and the appellate division the power to issue all writs "not inconsistent with law or with the rules of civil procedure . . . established by the Chief Justice . . . ." FSM Appellate Rule 22(a) requires that a petition for a writ of habeas corpus be first brought in the trial division.

The jurisdictional provision is clear, and circumstances which would warrant the suspension of the rule have not been shown to be present. The motion must therefore be granted.

Now therefore it is hereby ordered that Mr. Jano's petition for a writ of habeas corpus is dismissed without prejudice.

* * * *


	THE SUPREME COURT OF THE FEDERATED STATES OF MICRONESIA Cite as In re Extradition of Jano , 6 FSM Intrm. 31 (App. 1993) [6 FSM Intrm. 31] In re the Extradition of MARTIN JANO, Petitioner. APPEAL CASE NO. P2-1993 ORDER DISMISSING APPEAL Submitted: February 5, 1993 Dismissed: March 3, 1993 BEFORE: Hon. Richard H. Benson, Associate Justice, FSM Supreme Court Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court Hon. Lyndon L. Cornelius, Temporary Justice, FSM Supreme Court* Chief Justice, Kosrae State Court, Lelu, Kosrae APPEARANCES:* For the Petitioner: Marvin Hamilton, Esq. Office of the Public Defender P.O. Box 425 Colonia, Yap FM 96943 For the Respondent: Michael Brady, Esq. Assistant Attorney General Office of the FSM Attorney General P.O. Box PS-105 Palikir, Pohnpei FM 96941 * * * * HEADNOTE Habeas Corpus 4 F.S.M.C. 117 gives both the trial division and the appellate division the powers to issue all writs not inconsistent with law or with the rules of civil procedure. FSM Appellate Rule 22(a) requires petitions for writs of habeas corpus be first brought in the trial division. When the circumstances have been shown to warrant, the appellate division clearly has the authority to suspend the rule. In re Extradition of Jano, 6 FSM Intrm. 31, 32 (App. 1993). * * * * [6 FSM Intrm. 32] COURT'S OPINION RICHARD H. BENSON, Associate Justice: On February 5, 1993, Mr. Jano filed here in the appellate division an original petition for a writ of habeas corpus. This petition was supplemented on February 8, 1993. The petitioner and the FSM Attorney General's office were invited to submit points and authorities concerning whether, in the light of FSM Appellate Rule 22(a), the appellate division may entertain an original petition for such a writ. Both have responded. We have considered carefully their memoranda. This matter is now before us in the unusual posture in which the petitioner now asserts that an original petition for a writ of habeas corpus should only be heard in the trial division. Petitioner, however, has not moved for dismissal. We did not find the reasoning of the government that FSM Appellate Rule 22(a) should be suspended for this petition persuasive, although such suspension is clearly within our authority. FSM App. R. 2. We therefore raise the issue of dismissal on our own motion. Section 117 of Title 4 gives both the trial division and the appellate division the power to issue all writs "not inconsistent with law or with the rules of civil procedure . . . established by the Chief Justice . . . ." FSM Appellate Rule 22(a) requires that a petition for a writ of habeas corpus be first brought in the trial division. The jurisdictional provision is clear, and circumstances which would warrant the suspension of the rule have not been shown to be present. The motion must therefore be granted. Now therefore it is hereby ordered that Mr. Jano's petition for a writ of habeas corpus is dismissed without prejudice. * * * *