In re Extradition of Jano [1993] FMSC 10; 6 FSM Intrm. 031 (App. 1993) (3 March 1993)

6 FSM Intrm. 31 (App. 1993)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. P2-1993

In re the Extradition of MARTIN JANO
Petitioner.
____________________________

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

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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).

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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.

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