United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2254 MOTION
JOHN C. NIVISON, Magistrate Judge.
In this action, Petitioner Joseph Dorazio seeks relief pursuant to 28 U.S.C. § 2254. In particular, Petitioner contends that he received ineffective assistance of counsel during a state court hearing at which he (1) admitted a probation violation, and (2) pled guilty to burglary of a motor vehicle. (Petition, ECF No. 1 at 7.) He alleges that his counsel did not, despite his request, seek a mental health examination to assess a possible defense of diminished capacity. ( Id. ) Petitioner also asserts that his communication with his counsel had broken down. ( Id. ) As explained below, the recommendation is that the Court deny Petitioner's request for relief and dismiss the petition.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In October 2012, Petitioner was charged by criminal complaint with gross sexual assault, in violation of 17-A M.R.S. § 253(1)(A) (Class A), and unlawful sexual contact, in violation of 17-A M.R.S. § 255-A(1)(P) (Class B). (Docket Sheet, ECF No. 10-1 at 1, 3.) In March 2013, he was indicted on those charges and an additional charge of domestic violence assault, in violation of 17-A M.R.S. § 207-A(1)(A) (Class D). ( Id. at 1, 2.) The State subsequently amended the charge of unlawful sexual contact from Class B to Class C, a violation of 17-A M.R.S. § 255-A(1)(O). Petitioner pled guilty to the Class C offense, and the State dismissed the other two charges. Upon Petitioner's plea, the state court convicted Petitioner and sentenced him to a period of incarceration of three years and six months, with all but nine months suspended, followed by four years of probation. ( Id. at 3.) As a condition of his probation, Petitioner was required to refrain from criminal conduct. ( Id. ) Petitioner did not appeal the conviction or seek leave to appeal the sentence.
In December 2013, the State, alleging that Petitioner burglarized a motor vehicle, filed a motion to revoke Petitioner's probation. ( Id. at 5; Motion for Probation Revocation, ECF No. 10-2 at 1.) The State also filed a new criminal charge of burglary of a motor vehicle. Prior to the probation revocation hearing in January 2014, Petitioner had been arraigned on the new charge. (Probation Revocation Hearing Tr., ECF No. 10-3 at 3.)
At the hearing, where he was represented by counsel, Petitioner admitted the probation violation and pled guilty to the burglary charge. ( Id. at 4-5.) The state court sentenced Petitioner to serve 24 months of the previously suspended term of imprisonment on the unlawful sexual contact charge, and six months on the new charge, with the sentences to be served concurrently. ( Id. at 7.)
During the plea hearing, Petitioner's counsel represented that Petitioner had a mental health history and had a guardian. ( Id. at 5.) Counsel also informed the court that he had discussed the mental health issue with Petitioner, advised Petitioner that if he requested a mental health examination, the court would likely grant the request; however, Petitioner wanted to proceed with the plea. ( Id. at 5-6.) Counsel told the court that he believed Petitioner was competent to proceed and did not need a competency hearing. ( Id. at 6.) Petitioner did not object to, nor attempt to modify or clarify, any of counsel's representations to the court. The court asked Petitioner a question relating to a fine, but did not discuss the matter of Petitioner's competence further with either Petitioner or counsel. ( Id. )
Petitioner did not appeal the burglary conviction. (Supplemental State Court Record, ECF No. 12-1 at 3.) In addition, Petitioner did not seek leave to appeal, pursuant to 17-A M.R.S. § 1207(2) and M.R. App. P. 19, the probation revocation.
Pursuant to 28 U.S.C. §2254, Petitioner filed the pending petition in this Court in April 2014. (ECF No. 1.) The Court ordered the State to answer, and the State filed the state court record and its answer in June 2014, in which answer, the State requested summary dismissal of the petition. In support of its request for dismissal, the State cited Petitioner's failure to exhaust the available state court remedies as to the probation violation, and it argued that Petitioner's claim of ineffective assistance of counsel in a probation revocation proceeding is insufficient to constitute cause for a procedural default. (State Court Record, ECF No. 10; Answer, ECF No. 9.) Interpreting the pending section 2254 petition to challenge both the probation violation and the burglary conviction, the Court, in October 2014, ordered the State to supplement its answer and the state court record to address the burglary conviction. (Order, ECF No. 11.) The State supplemented its answer, and Petitioner filed his reply to the submission. (Supplemental Answer, ECF No. 12; Supplemental State Court Record, ECF No. 12-1; Reply, ECF No. 13.)
Based on the record before this Court, it appears that the time within which Petitioner could file a state court post-conviction petition challenging the burglary conviction has not yet expired. Petitioner thus has not exhausted his state court remedies, pursuant to section 2254(b)(1)(A). Petitioner's challenge to the probation revocation, however, is not an unexhausted claim.
A. This Mixed Petition May Be Decided on the Merits
The pending section 2254 petition is "mixed" in that it contains both unexhausted and technically exhausted claims. See Rhines v. Weber, 544 U.S. 269, 271 (2005) ("We confront here the problem of a "mixed" petition for habeas corpus relief in which a state prisoner presents a federal court with a single petition containing some claims that have been exhausted in the state courts and some that have not.") Because Petitioner did not seek discretionary state court review of his probation revocation,  Petitioner's claim of ineffective assistance of counsel in the probation revocation proceeding is considered exhausted, but procedurally defaulted. See Woodford v. Ngo, 548 U.S. 81, 93 (2006) (holding that "if state-court remedies are no longer available because the prisoner failed to comply with the deadline for seeking state-court review or for taking an appeal, those remedies are technically exhausted" but "procedurally defaulted"). As explained above, Petitioner's claim of ineffective assistance of counsel with respect to the plea on the burglary charge is unexhausted because Petitioner's time for filing a state court post-conviction petition has not yet run.
When a mixed petition is presented, section 2254 provides that the court may deny the petition on the merits "notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2). In appropriate circumstances, the district court may "give the petitioner an opportunity to dismiss the unexhausted claims" or it may "stay the mixed petition and hold it in abeyance while the petitioner exhausts the unexhausted claims, then lift the stay and adjudicate the petition once all claims are exhausted." DeLong v. Dickhaut, 715 F.3d 382, 387 (1st Cir. 2013). However, it is "an abuse of discretion for the district court to grant a stay when the unexhausted claims are ...