By Gina Tabonares
Variety News Staff

THE Ninth Circuit Court of Appeals ordered the District Court of Guam to conduct an evidentiary hearing on the case of a man who was sentenced with conspiracy to import heroin.
In granting the petition of Israel Duarte-Rosas, the Ninth Circuit stated in its order that the district court erred when it denied the defendant’s motion to vacate his sentence.
Duarte-Rosas, who already served four years after entering into a plea agreement on the charges of conspiracy to import illegal substance, filed an appeal to the Hawaii court questioning the decision of Presiding Judge David Carter in denying his motion.
Judge Carter denied Duarte-Rosas’ motion on two independent grounds: the defendant’s peal agreement expressly waived his right to collaterally attack his sentence and that Duarte-Rosas procedurally waived his right to collaterally attack his sentence and prejudice or actual innocence.
Duarte-Rosas, through his lawyer, Curtis Van de Veld, argued that the factual basis in his plea agreement that he sent heroin to Guam via U.S. mail and traveled over international waters on a direct flight from California to Guam to receive payment for previous shipments does not constitute conspiracy to import heroin.
The Ninth Circuit, however, disagreed with the district court, saying that the court erred by concluding that the defendant did not prove actual innocence.
The appellate court stated that while it agrees with the district court that Duarte-Rosas — who did not appeal his conviction or sentence and failed to demonstrate cause and prejudice — the only evidence of importation from another country was Duarte’s admission in his plea agreement.
The Ninth Circuit also ruled that the district court made a mistake by requiring the defendant to show actual innocence of other charges the government could have brought.
Because the district court did not hold an evidentiary hearing to establish more evidence, Guam District Court Chief Judge Frances Tydingco-Gatewood set an evidentiary hearing on the case on July 25, 2007 at 1:30 p.m.
Judge Tydingco-Gatewood ordered that the evidentiary hearing will be limited to that which will assist the court in determining the meaning of “elsewhere” as contained in the plea agreement of Duarte-Rosas and whether the defendant is “actually innocent” of conspiracy to import heroin.
The United States Marshal was instructed to bring back Duarte-Rosas to Guam at least 10 days prior to the scheduled hearing.