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Drewry v. State

United States District Court, D. Maine

January 23, 2015

BRANDON BOONE DREWRY, Petitioner,
v.
STATE OF MAINE, Respondent

BRANDON BOONE DREWRY, Petitioner, Pro se, WARREN, ME.

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

RECOMMENDED DECISION ON 28 U.S.C. § 2254 MOTION AND ORDER ON MOTIONS REQUESTING THE APPOINTMENT OF COUNSEL

John C. Nivison, United States Magistrate Judge.

Petitioner Brandon Boone Drewry has filed a petition seeking relief pursuant to 28 U.S.C. § 2254. (Petition, ECF No. 1, 1-4.) The matter is also before the Court on Petitioner's two motions for the appointment of counsel. (Motions, ECF Nos. 12, 13.)

Following a jury trial in 2006, Petitioner was convicted in state court in Maine of gross sexual assault, kidnapping, and several other crimes. (State Court Record (" Record"), ECF No. 11-1 at 11-12.) The state court sentenced Petitioner to a prison term of 30 years. (Record at 13-15.)

In this matter, Petitioner argues the following: (1) ineffective assistance of trial counsel for the failure to conduct an adequate pretrial investigation, the failure to file a motion for a speedy trial before testimony was lost, the failure to present expert testimony regarding eyewitness identification, the failure to argue a suppression issue adequately, the failure to present key witnesses, and the failure to pursue an alternate suspect theory; (2) alleged misconduct by law enforcement officers; (3) judicial bias; (4) the denial of the right of self-representation; and (5) ineffective assistance of post-conviction counsel for the failure to provide correct advice about the federal statute of limitation and the failure to raise all of the issues that Petitioner requested. Petitioner also makes certain allegations regarding the conditions of his confinement.[1] As part of its response to the petition, the State argued that Petitioner had not timely filed the petition.[2]

After a review of the petition and the State's request for dismissal, Petitioner's motions requesting counsel are denied because the interests of justice do not require counsel to be appointed. See 18 U.S.C. § 3006A. In addition, the recommendation is that the Court grant the State's request for dismissal of the petition.

I. Factual Background and Procedural History

Petitioner was indicted in October 2004 on six charges: (1) gross sexual assault, 17-A M.R.S. § 253(1)(A) (Class A) (count I); (2) kidnapping, 17-A M.R.S. § 301(1)(A)(3) (Class A) (count II); (3) aggravated assault, 17-A M.R.S. § 208(1)(B) (Class B) (count III); (4) unlawful sexual contact, 17-A M.R.S. § 255-A(1)(P) (Class B) (count IV); (5) criminal threatening with a dangerous weapon, 17-A M.R.S. § 209(1) (Class C) (count V); and (6) aggravated assault, 17-A M.R.S. § 208(1)(A) (Class B) (count VI). (Record at 3.) Following a six-day trial in December 2006, the jury returned a verdict of guilty on each of the six counts. (Record at 11-12.) In April 2007, the court sentenced Petitioner to a term of 30 years for gross sexual assault; 30 years for kidnapping; ten years for aggravated assault; ten years for unlawful sexual contact; five years for criminal threatening with a dangerous weapon; and ten years for aggravated assault, with counts two through six to be served concurrently with the 30-year term on count one for gross sexual assault. (Record at 13-15.)

Petitioner filed both a notice of appeal of the conviction and a request for discretionary review of the sentence. In December 2007, the Law Court denied leave to appeal the sentence. (Record at 22.) In May 2008, the Law Court affirmed the conviction, holding that (1) Petitioner's right to a speedy trial was not violated; (2) Petitioner was not denied the right of self-representation; (3) the trial court did not err when it denied Petitioner's motion to suppress evidence obtained during a search of Petitioner's bags, which had been seized without a warrant and searched after a warrant was obtained; (4) the trial court did not err or abuse its discretion when it admitted evidence that semen found in the victim's vagina did not belong to Petitioner, but excluded evidence that the semen did not belong to the victim's husband; (5) the trial court did not err when it ordered Petitioner to reimburse the State for a portion of his attorney fees; and (6) the evidence was sufficient to support the finding that Petitioner committed each element of the crimes of which he was convicted. State v. Drewry, 2008 ME 76, 946 A.2d 981.

Petitioner filed a petition for a writ of certiorari, which the Supreme Court denied in October 2008. (Record at 23.) Meanwhile, in April 2008, Petitioner filed a petition for post-conviction review in the state court. (Record at 25.) The court held an evidentiary hearing in October 2009, and it denied the petition in June 2010. (Record at 27-28.) Petitioner timely filed an application for a certificate of probable cause for discretionary review by the Law Court. (Record at 28.) On March 28, 2011, the Law Court denied discretionary review. (Record at 30, 32.)

On April 28, 2011, the Law Court received a letter from Petitioner requesting " that he be 'allow[ed] to properly defend' himself." (Record at 32.) The Law Court construed Petitioner's letter as a motion for reconsideration and dismissed it as untimely. (Record at 32.) On May 23, 2011, the Law Court received a letter from Petitioner " asking that the Court 'apply a bifurcated review' to the denial of his petition for post-conviction review." (Record at 32.) The Law Court noted that Petitioner had previously raised the issue " in a supplemental memorandum in support of his request for a certificate of probable cause, which he filed personally as an addition to the thorough memorandum filed by his attorney on appeal, " and the Law Court denied the motion on May 24, 2011. (Record at 32-33.) On June 17, 2011, Petitioner filed a petition for a writ of certiorari, and on October 3, 2011, the United States Supreme Court denied the petition. (Record at 34.) On December 12, 2011, Petitioner filed a motion requesting leave to file a petition for rehearing; the Supreme Court denied the motion on January 23, 2012. (Record at 34.)

On April 3, 2012, Petitioner filed a second state court petition for post-conviction review. (Record at 36.) The court summarily dismissed the petition on May 14, 2012. (Id.) On May 21, 2012, Petitioner requested a certificate of probable cause for discretionary review by the Law Court. (Id.) The Law Court denied Petitioner's request on October 31, 2012. (Record at 37-38.) Petitioner filed two successive motions to reconsider, the first of which the Law Court denied on February 7, 2013, and the second of which the Law Court dismissed on February 25, 2013. (Record at 40.) On April 23, 2013, Petitioner filed a petition for a writ of certiorari in the United States Supreme Court. (Record at 42.) On October 7, 2013, the Supreme Court denied the petition. (Id.) On November 1, 2013, Petitioner filed a petition requesting a rehearing, which the Supreme Court denied on January 13, 2014. (Id.)

In his reply filed in opposition to Respondent's request for dismissal, Petitioner alleges that he placed the pending petition in the prison mailing system on November 3, 2014. (Reply, ECF No. 14 at 11.) The petition ...


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