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Boucher v. State

Superior Court of Maine, Kennebec

July 7, 2016

MICHAEL BOUCHER, Petitioner
v.
STATE OF MAINE, Respondent

          ORDER ON PETITION FOR POST-CONVICTION REVIEW

          Robert H. Mullen, Justice

         Hearing was had on March 4, 2016 with respect to the Petitioner Michael Boucher's (hereinafter "Petitioner") Petition For Post-Conviction Review as amended on November 21, 2014. After the Court has had an opportunity to review the multiple exhibits filed by both parties as well as the post-hearing memoranda of counsel, the last being filed on April 27, 2016, the Court enters the following Order based upon the reasoning as set forth below:

         Procedural History:

         1. Petitioner was indicted in 1988 by a Kennebec County Grand Jury charging the Petitioner with the murder of Debra Dill, the crime having occurred fifteen years earlier.

         2. Petitioner was convicted in 1991 after a jury trial of the murder and sentenced to life imprisonment with parole.

         3. By decision dated September 3, 1994, the Law Court affirmed the jury verdict, see State v. Boucher, 652 A.2d 76 (Me. 1994).

         4. Petitioner sought parole in 2001, 2006, 2011, and 2014 without success.

         5. On June 4, 2014 Petitioner filed a collateral state petition for postconviction review pursuant to 15 M.R.S. §§ 2121-2129. Two amendments to the Petition were subsequently granted.

         6. On March 4, 2016 a testimonial hearing was held before the undersigned at which the Petitioner contended that his procedural due process rights, his substantive due process rights, and his right to equal protection under the law were all violated. The undersigned will discuss each contention below:

         Alleged Procedural Due Process Violation:

         7. Petitioner argues that his procedural due process rights were violated when he was allegedly not told he could request to have his May 2014 parole hearing recorded and when he was allegedly not told that he could request to have a spokesperson represent him at his May 2014 hearing. The principal State witness regarding these contentions, PPO Delahanty, testified that he had no specific recollection that he affirmatively informed Petitioner that Petitioner could request that the hearing be recorded and/or that Petitioner could request to have a spokesperson represent him at the hearing, although it would have been his usual practice to so inform a prisoner as much.

         8. The undersigned notes that the Petitioner did sign the Hearing Notice dated 2/7/2014 that states that Petitioner had "discussed the criteria for parole release outlined in the Initial Hearing Notice with a probation officer..." presumably PPO Delahanty. (Petitioner's Exhibits Volume A at 3). The Initial Hearing Notice informs recipients that they may request the hearing be taped and that they be allowed to request a spokesperson speak on their behalf at the hearing. (Petitioner's Exhibits Volume A at 5.)

         9. The undersigned also notes that Petitioner had requested prior parole hearings be taped and that Petitioner have a spokesperson represent him at prior hearings. The undersigned finds Petitioner's explanation that he did not request the May 2014 hearing to be recorded or transcribed because he "assumed it would automatically been done because it had been done twice in the past" not credible.

         10. As the State points out in its memorandum, the United States Supreme Court in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex,442 U.S. 1 (1979) held that there is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence: in short, there is no constitutional "right" to parole. Parole release involves the denial of a liberty desired by inmates, and that decision ...


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