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Ericson v. Landry

United States District Court, D. Maine

December 31, 2014

ERIC ERICSON, Petitioner,
v.
SCOTT LANDRY, WARDEN, MAINE CORRECTIONAL CENTER, Respondent

ERIC ERICSON, Petitioner, Pro se, WINDHAM, ME.

For SCOTT LANDRY, Respondent: DONALD W. MACOMBER, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL, AUGUSTA, ME.

RECOMMENDED DECISION ON 28 U.S.C. § 2254 PETITION

John C. Nivison, United States Magistrate Judge.

In 2010, Petitioner Eric Ericson was convicted in state court of gross sexual assault, unlawful sexual contact, and sexual abuse of a minor. In this action, Petitioner seeks relief from the judgment pursuant to 28 U.S.C. § 2254. (Petition, ECF No. 1.)

Petitioner contends that he is entitled to relief because (1) the state court erred in limiting his cross-examination at trial of the victim and witnesses; (2) the court denied his right to testify; (3) the court improperly excluded expert testimony; and (4) the court imposed a sentence that " was too harsh." In his petition, Petitioner raises several additional issues that he argued in his state court post-conviction petition, and he includes some allegations that he failed to raise in state court.[1] The State has moved to dismiss the petition.

As explained below, 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.

I. Factual Background and Procedural History

Petitioner was indicted in 2006 for gross sexual assault (Class A), 17-A M.R.S. § 253(1)(B); unlawful sexual contact (Class C), 17-A M.R.S. § 255-A(1)(E), and sexual abuse of a minor (Class C), 17-A M.R.S. § 254(1)(A-2). (Docket Sheet at 2, State Court Record (" Record"), Vol. I; Indictment at 1, Record, Vol. I.) State v. Ericson, CARSC-CR-06-249 (Me. Super. Ct., Aro. Cnty., July 14, 2006). Following a four-day jury trial, Petitioner was convicted on all three charges. (Docket Sheet at 13-15; Judgment and Commitment, Record, Vol. I.) The court sentenced him in April 2010 to a term of 17 years in prison on the gross sexual assault charge, with all but 12 years suspended, followed by a term of four years of probation. (Docket Sheet at 15; Judgment and Commitment.) On each of the other two charges (unlawful sexual contact, sexual abuse of a minor), the court sentenced Petitioner to five years in prison, concurrent with the 17-year sentence. (Docket Sheet at 16; Judgment and Commitment.)

The Sentence Review Panel denied Petitioner's request for a discretionary appeal of his sentence. (Sentence Review Panel Docket No. SRP-10-284, Record, Vol. II; Order Denying Leave to Appeal from Sentence, Record, Vol. II.) In his direct appeal, Petitioner raised three of the issues that he now cites in his section 2254 petition. He argued on appeal that the trial court (1) abused its discretion in excluding the testimony of Petitioner's expert witness; (2) erred in determining that Petitioner had waived his right to testify; and (3) abused its discretion in limiting the scope of Petitioner's cross-examination of the victim. State v. Ericson, 2011 ME 28, ¶ 1, 22, 13 A.3d 777. The Law Court affirmed the judgment. Id. Petitioner did not file a petition for a writ of certiorari with the United States Supreme Court.

In accordance with 15 M.R.S. § 2129, in June 2011, Petitioner filed a state court post-conviction petition. (Post-conviction Docket Sheet at 1, Record, Vol. I; State Court Petition, Record, Vol. II.) Ericson v. State, CARSC-CR-2011-00256 (Me. Super. Ct., Aro. Cnty., June 3, 2011). Counsel filed an amended petition in December 2011, and in November 2012, the state court conducted an evidentiary hearing on the petition. (Post-conviction Docket Sheet at 1, 3.)

In January 2013, the Superior Court denied relief and dismissed the petition and the amended petition. (Id. at 3; Post-conviction Decision, Record, Vol. II.) In February 2013, Petitioner filed an application for a certificate of probable cause, seeking discretionary review from the Law Court. (Law Court Docket at 1, Record, Vol. II.) Ericson v. State, ARO-13-196 (Me. Feb. 14, 2013). In June 2013, counsel filed a memorandum in support of Petitioner's application for discretionary review. (Law Court Docket at 1; Memorandum in Support of Certificate of Probable Cause, Record, Vol. II.) On August 6, 2013, after consideration of Petitioner's application, the Law Court entered an order denying a certificate of probable cause. (Law Court Docket at 2; Order Denying Certificate of Probable Cause, Record, Vol. II.)

Petitioner asserts that he signed the instant petition on July 15, 2014, and he apparently placed it in the prison mailing system on July 28, 2014. (Petition at 15.) The petition was filed on August 7, 2014. (Id. at 1.) The State, in response to the Court's order to answer and in accordance with Rule 5 of the Rules Governing Section 2254 Cases, filed the state court record and an answer seeking dismissal. (Order to Answer, ECF No. 4; Answer, ECF No. 5; Record, ECF No. 6.)[2] Petitioner requested that counsel be assigned, and the Court denied that request. (Motion, ECF No. 7; Order, ECF No. 8.) Petitioner filed a reply in response to the State's answer, followed by a motion to amend that incorporated the reply by reference along with the amended reply. (Reply, ECF No. 12; Motion to Amend and Amended Reply, ECF No. 13.) The Court granted Petitioner's motion to amend the reply. (Orders, ECF Nos. 14, 15.)

II. Discussion

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 a writ of habeas corpus " only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." A petition may not be granted, however, if the petitioner does not first exhaust available state court remedies. 28 U.S.C. § 2254(b).[3] As to federal habeas claims that were adjudicated on the merits in state court, the federal court may not grant relief unless (1) the state court decision was " contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " pursuant to 28 U.S.C. § 2254(d)(1), or (2) the decision " was based on an unreasonable determination of the facts, " pursuant to section 2254(d)(2).[4] " It is settled that a federal habeas court may overturn a state court's application of federal law only if it is so erroneous that 'there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents.'" Nevada v. Jackson, 133 S.Ct. 1990, 1992, 186 L.Ed.2d 62 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011)). The Supreme Court has described this as a " deferential standard" and noted: " Only rarely have we held that the right to present a complete defense was violated by the exclusion of defense evidence under a state rule of evidence." Id. The state court's factual findings are " presumed to be correct, " unless the petitioner can rebut the presumption with " clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

A. The Exhausted Claims

i. Claims addressed in the direct appeal

a. Limitation on cross-examination

Petitioner first alleges that records of the Department of Health and Human Services and the testimony of the victim's father would have shown that the victim had a history of fabricating allegations, particularly an allegation that the victim's father tied the victim's hands around a pole in the family's basement. (Petition at 5; Amended Reply, ECF No. 13 at 4, 6-7.)[5] At trial, counsel explained that the evidence supported the defense theory that the victim fabricated stories to get out of her mother's house, and that her allegation against Petitioner, like her allegation against her father, was motivated by her desire to get out of the house and remain in her foster home. (Trial Tr. II at 137-40, Record, Vol. I.) Petitioner argues that the trial court erred when it excluded, under Rule 608 of the Maine Rules of Evidence, both the cross-examination of the victim and the use of extrinsic evidence during that cross-examination. (Petition at 5.)[6]

Petitioner preserved the objection at trial and on appeal raised a federal confrontation clause issue. (Trial Tr. II at 139-41; Brief for Appellant at 8-12, Record, Vol. II.) In his appellate brief, citing Rule 608(b), the Sixth and Fourteenth Amendments to the United States Constitution, and Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), Petitioner argued that the trial court deprived him of his right to confront witnesses when the court precluded him from cross-examining the victim regarding her allegations against her adoptive father. (Brief at 8, 12.)

The Law Court upheld the trial court's exclusion of the evidence. The Court reasoned in part that the evidence was collateral, and its admission could have generated a trial within a trial as to whether the victim or her father was telling the truth, thereby confusing the issues. Id. ¶ 22. The evidence thus failed the balancing test of Rule 403.[7] The Law Court held: " [A]lthough we recognize that exposure of a complaining witness's motivation 'is a proper and important function of the constitutionally protected right of cross-examination, ' in this case the court acted within its discretion in excluding the testimony Ericson sought to elicit from the victim." Id. ¶ 22 (quoting State v. Filler, 2010 ME 90, ¶ 17, 3 A.3d 365).

The Supreme Court has recognized that " [t]he rights to confront and cross-examine witnesses and to call witnesses in one's own behalf" are " essential to due process." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In Jackson, the Supreme Court addressed the constitutionality of a Nevada statute that is similar to Rule 608 in that it " generally precludes the admission of extrinsic evidence of specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime." Jackson, 133 S.Ct. at 1992-93 (quotation marks and alteration omitted). The Court concluded that " the Nevada statute is akin to the widely accepted rule of evidence law that generally precludes the admission of evidence of specific ...


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