STANLEY L. WARD, Petitioner,
STATE OF MAINE, Respondent
Petitioner STANLEY L WARD represented by STANLEY L WARD MAINE STATE PRISON ATTORNEY TO BE NOTICED
Respondent STATE OF MAINE represented by DONALD W. MACOMBER OFFICE OF THE ATTORNEY ATTORNEY TO BE NOTICED
RECOMMENDED DECISION ON 28 U.S.C. § 2254 MOTION
John C. Nivison U.S. Magistrate Judge
Stanley L. Ward, who is currently in state custody, filed a habeas petition, pursuant to 28 U.S.C. § 2254, collaterally challenging his state court conviction and sentence for robbery, kidnapping, and attempted murder. The state court imposed concurrent sentences on the kidnapping and attempted murder counts and a consecutive sentence on the robbery count, resulting in an aggregate term of imprisonment of fifty years, with all but forty-five years suspended. The Law Court affirmed the sentence on direct appeal. State v. Ward, 2011 ME 74, 21 A.3d 1033. The state court denied his post-conviction petition following an evidentiary hearing, and the Law Court declined a discretionary appeal.
In the pending section 2254 petition, Petitioner reasserts the sentencing-related arguments made in his direct appeal and the ineffective assistance claims made in his post-conviction proceeding. In addition, he raises a claim that was not presented in the state court. As part of its response to the petition, the State moved for dismissal.
After a review of Petitioner’s motion and the State’s request for dismissal, as explained below, the recommendation is that the Court grant the State’s request, deny relief, and dismiss the petition.
I. Factual Background and Procedural History
The facts of the crime, which took place in November 2009, are derived from the Law Court’s opinion in Petitioner’s direct appeal. Petitioner had financial problems. He formulated a plan to rob, kidnap, and murder someone who, like the victim, was a client of his father’s lawn care business. Id. ¶ 2. When Petitioner found that the intended victim had left town for Thanksgiving, he changed his target to the victim, who was a 72-year old widow living alone at her home in Belfast. Id.
Petitioner planned the attack for two days and arrived at the victim’s home at 4:30 p.m. on the day of the crime, carrying a hunting knife and some duct tape. Id.¶ 3. He obtained entry to the home on false pretenses, offering to do yard work for money. Petitioner assaulted her and demanded money. Id. ¶ 4. The victim gave Petitioner the money that she could find, and then Petitioner forced her to write him a check for $300. Id. During the assault in the victim’s home, Petitioner injured her and bound her hands with duct tape. Id.
Petitioner then kidnapped the victim in her car and drove her to a small, abandoned trailer in a remote location. Id. ¶¶ 5-6. He forced her inside the trailer, slammed her to her knees, and displayed his knife while she begged for her life. Id¶ 6. The victim said, “Please don’t hurt me.” Id. Petitioner laughed and said “Why not?” He cut her throat and then asked, “Are you bleeding yet?” “Are you bleeding good yet?” Id. The victim lost consciousness for brief periods. Id. Petitioner left for a short time and returned, asking “Are you dead yet?” He cut her throat a second time. Id. ¶ 7. Petitioner left and returned, cut her throat a third time, struck her repeatedly in the head with the butt end of his knife, and stabbed her in the neck and shoulder. Id. The victim heard Petitioner say, “Well, you’re dead now.” Id.
Petitioner disposed of the knife, drove into Belfast, returned the victim’s car to her driveway, got his truck, deposited the $300 check, and bought “Twisted Tea” and cigarettes. Id. ¶ 8. He then drove back to the trailer to determine if the victim was dead, but he turned around without entering the trailer after concluding that the victim must be deceased. Id. Unbeknownst to Petitioner, the victim had crawled out of the trailer and down the road. Id. ¶ 9. She rolled into a ditch filled with cold water when she saw the truck approaching. Id. Petitioner drove to his girlfriend’s house, where he consumed alcohol and smoked marijuana with her and her father. Id. ¶ 8. He then went home and went to bed. Id. The victim, though severely injured, survived the attack and identified Petitioner. Id. ¶ 11. Petitioner was arrested the next morning. Id. He waived his Miranda rights, admitted the crime, and agreed to reenact it in a video for law enforcement. Id.
In November 2009, Petitioner was charged by criminal complaint in the Maine Superior Court with one count of robbery, 17-A M.R.S. § 651(1)(C); one count of kidnapping, 17-A M.R.S. § 301(1)(A)(3); and one count of attempted murder, 17-A M.R.S. § 17-A M.R.S. §152(1)(A). State v. Ward, No. BELSC-CR-2009-00356 (Docket Sheet.) In January 2010, Petitioner waived indictment, and his motion for a psychiatric examination was granted. In March 2010, the psychiatric report was filed, and in April 2010, the state court conducted a hearing pursuant to M. R. Crim. P. 11, at which hearing Petitioner changed his pleas from not guilty to open pleas of guilty on all counts. The court accepted the pleas.
In July 2010, the court sentenced Petitioner on the robbery to a term of 20 years of imprisonment, with all but 15 years suspended, followed by four years of probation, and restitution of $10, 226; on the kidnapping to 20 years of imprisonment; and on the attempted murder to 30 years of imprisonment. The sentence for robbery was to be served consecutively to the sentence for attempted murder. (Docket Sheet; Amended Judgment.)
Petitioner directly appealed from the sentence, and he filed an application to allow a discretionary appeal of the sentence, pursuant to 15 M.R.S. § 2151 and M. R. App. P. 20. Ward, 2011 ME 74, ¶ 13. The Sentence Review Panel denied the discretionary appeal. Id. In his direct appeal, Petitioner challenged the sentence on the following grounds:
that (1) the length of the sentences, both individually and collectively, violated his constitutional protection against cruel or unusual punishment; (2) when the court found the facts necessary to impose consecutive sentences, resulting in a longer period of incarceration than the statutory maximum for any of his convictions individually, it violated his constitutional right to trial by jury; and (3) the court erred in its application of 17–A M.R.S. § 1256 (2010) in imposing consecutive sentences.
Id. ¶ 1 (footnote omitted).
The Law Court held that neither the thirty-year sentence imposed for attempted murder, nor the fifty-year aggregate sentence, was constitutionally disproportionate under either Article I, section 9 of the Maine Constitution or the Eighth Amendment to the United States Constitution. Id. ¶¶ 16-18, 20, 22. The Law Court held that Petitioner was not denied his Sixth Amendment right to a jury trial when the court made factual findings, pursuant to 17-A M.R.S. § 1256(2), in deciding to impose consecutive sentences. Id. ¶¶ 23-25. Finally, the Law Court held that the sentencing court did not misapply 17-A. M.R.S. § 1256 when it imposed consecutive sentences. Id. ¶¶ 29-32.
In July 2011, Petitioner filed a pro se petition for state court post-conviction review, pursuant to 15 M.R.S. § 2129 and M. R. Crim. P. 68. (Docket Sheet.) The state court appointed counsel, who filed an amended petition. In the state court proceeding, Petitioner argued that trial counsel was constitutionally ineffective for (1) failing to file and pursue a motion to suppress the reenactment videotape, see Ward, 2011 ME 74, ¶ 11; (2) failing to conduct an adequate pretrial investigation; (3) failing to advise Petitioner correctly about his sentencing exposure; and (4) failing to provide guidance to Petitioner and his mother regarding statements they made at the sentencing hearing. (Post-conviction Decision and Judgment at 1.) Petitioner’s pro se post-conviction petition also included a claim for ineffective assistance of counsel on appeal; the same attorney served as both trial and appellate counsel.
The state court conducted an evidentiary hearing on the petition in November 2012. In January 2013, the court denied the petition. In February 2013, Petitioner, through appointed counsel, filed a notice of discretionary appeal, and subsequently filed a memorandum of law requesting a certificate of probable cause in accordance with 15 M.R.S. §2131 and M. R. App. P. 19. Ward v. State, Wal-13-85. (Docket Sheet; Petitioner’s Memorandum in Support of Certificate of Probable Cause.) The Law Court denied the certificate of probable cause. (Docket Sheet; Order Denying Certificate of Probable Cause.)
Petitioner signed the pending pro se federal habeas petition on January 13, 2014, which petition was filed on January 17, 2014.
Pursuant to 28 U.S.C. § 2254(a), a person in custody pursuant to the judgment of a state court may apply to a federal district court for writ of habeas corpus “only on the ground that he is in custody in violation of the ...