United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2254 PETITION AND MOTION FOR ORDER OF RELEASE
JOHN C. NIVISION, Magistrate Judge.
In this action, Petitioner Geoffrey Demond Reese seeks relief, pursuant to 28 U.S.C. § 2254, from a state court conviction for elevated aggravated assault, aggravated assault, and illegal possession of a firearm. (Petition, ECF No. 1.) The state court sentenced Petitioner to 29 years in prison. State v. Reese, 2010 ME 30, ¶ 1, 991 A.2d 806. Petitioner has also filed a motion for an order releasing him pending the decision on his section 2254 petition. (Motion, ECF No. 6.)
As the bases for his request for relief, Petitioner argues: (1) that he was wrongfully convicted based on evidence admitted in violation of his Fourth and Fifth Amendment rights, and as the result of evidentiary errors and a jury instruction error; (2) that his sentence of 29 years is excessive; (3) that trial counsel provided ineffective assistance in several ways, including by failing to investigate the evidence and cross-examine witnesses adequately, and by coercing Petitioner into testifying; and (4) that the State violated Brady v. Maryland, 373 U.S. 83 (1963).
The State has moved for dismissal citing the timeliness of the petition. After a review of the petition and the record, and after consideration of the parties' arguments, the recommendation is that the Court grant the State's request, and dismiss the petition. The recommendation is also that the Court dismiss as moot Petitioner's motion for an order to release him pending decision on his section 2254 petition.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner was charged, by indictment filed in May 2008 in the York County Superior Court, with attempted murder (Class A), 17-A M.R.S. § 201(1)(A); elevated aggravated assault (Class A), 17-A M.R.S. § 208-B(1)(A); aggravated assault (Class B), 17-A M.R.S. § 208(1)(B); and illegal possession of a firearm (Class C), 15 M.R.S. §393(1)(A-1). State v. Reese, No. ALFSC-CR-2008-01157 (Me. Super. Ct., Yor. Cnty., May 7, 2008). (State Court Record ("Record"), ECF No. 4-1 at 3.) The charge of attempted murder was dismissed before trial, and Petitioner agreed to a jury-waived trial of the possession-of-firearm charge. (Record at 11.)
After an eight-day trial, a jury found Petitioner guilty of the charges of elevated aggravated assault and aggravated assault, and the court found him guilty of the possession-of-firearm offense. (Record at 11-14.) Reese, 2010 ME 30, ¶ 1. The court sentenced Petitioner to a term of 29 years in prison on the elevated aggravated assault charge. (Record at 14.) Reese, 2010 ME 30, ¶ 1. The court also sentenced him to a term of 10 years in prison on the aggravated assault charge and to a term of five years in prison on the possession charge, with both sentences to be served concurrent to the 29-year sentence. (Record at 15.)
The Law Court affirmed both the convictions and the sentences. Reese, 2010 ME 30, ¶ 35. The Supreme Court denied Petitioner's petition for a writ of certiorari on October 4, 2010. (Record at 27.) Reese v. Maine, 131 S.Ct. 326 (2010).
Petitioner filed a pro se petition for post-conviction review on January 21, 2011, in the York County Superior Court. Reese v. State, No. ALFSC-CR-2011-00144 (Me. Super. Ct., Yor. Cnty., Jan. 21, 2011) (Supplemental State Court Record ("Supp. Record"), ECF No. 7-1 at 2.) That petition was summarily dismissed by order entered on March 11, 2011. ( Id. ) The appeal period expired 21 days later, on Friday, April 1, 2011, as Petitioner did not seek a discretionary appeal. (Reply, ECF No. 5 at 2, 4; Supp. Record at 2.)
Petitioner filed another pro se petition for post-conviction review on June 14, 2011, in the York County Superior Court. Reese v. State, No. ALFSC-CR-2011-01216 (Me. Super. Ct., Yor. Cnty., June 14, 2011). (Record at 28.) The court held an evidentiary hearing in June 2012, and on August 28, 2012, the court entered an order denying the post-conviction petition. (Record at 32.) Petitioner filed a notice of discretionary appeal in September 2012. (Record at 32.) The appeal was dismissed in June 2013 for want of prosecution, based on Petitioner's failure to file a memorandum in support of his request for a certificate of probable cause or a motion to enlarge the time in which to file a memorandum. ( Id. at 32, 35.)
In August 2013, the Law Court appointed new counsel and ordered the reinstatement of the discretionary appeal. ( Id. at 32-33, 36.) On December 10, 2013, the Law Court entered an order denying Petitioner's request for a certificate of probable cause to appeal the post-conviction decision. (Record at 36.) On December 23, 2013, Petitioner moved for reconsideration by the Law Court; on January 10, 2014, the Law Court denied the motion. (Record at 36-37.)
Petitioner asserts that he placed the pending section 2254 petition in the prison mailing system on August 25, 2014. (Petition at 15.) On August 28, 2014, the petition was filed on the docket in this court. ( Id. at 1.)
A. General Rules Regarding ...