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Brown v. Landry

United States District Court, D. Maine

July 14, 2016

BRANDON S. BROWN, Petitioner,
v.
SCOTT LANDRY, Warden, Maine Correctional Center, Respondent

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

          John C. Nivison U.S. Magistrate Judge

         In this action, Petitioner Brandon S. Brown seeks relief, pursuant to 28 U.S.C. § 2254, from his state court conviction for elevated aggravated assault and attempted murder. (Petition, ECF No. 1.) Petitioner asserts four claims of ineffective assistance of counsel: (1) that at trial and at sentencing, counsel provided inaccurate and overly pessimistic information about the victim’s recovery (Ground One); (2) that counsel failed to object to the victim’s testimony about his tattoos, his taking medicine while on the witness stand, and his military service (Ground Two); (3) that counsel failed to present expert testimony to support Petitioner’s theory that he acted in self-defense (Ground Three); and (4) that counsel failed adequately to cross-examine two prosecution witnesses whose trial testimony was inconsistent with their pretrial statements to police, and that counsel failed adequately to prepare a private investigator to testify to the inconsistencies in the testimony of other prosecution witnesses (Ground Four).

         The State argues that the section 2254 petition is untimely, that Petitioner failed to exhaust some of the claims in state court, and that the exhausted claims lack merit. (Response, ECF No. 3.) Petitioner filed a reply. (Reply, ECF No. 5.)

         After consideration of the parties’ arguments, I recommend the Court grant the State’s request and dismiss the petition.

         I. Factual Background and Procedural History

         The state court record (ECF No. 4) reveals that Petitioner was indicted in August 2008 on three counts: (1) attempted murder (Class A), 17-A M.R.S. §§ 152, 201, based on an incident that occurred on June 24, 2008; (2) elevated aggravated assault (Class A), 17-A M.R.S. § 208-B(1)(A), also based on the June 24, 2008, incident; and (3) reckless conduct with a dangerous weapon (Class C), 17-A M.R.S. §§ 211, 1252(4), for an incident alleged to have occurred on March 23, 2008. (State of Maine v. Brown, No. PORSC-CR-2008-01540 (Me. Super. Ct., Cum. Cnty), Indictment at 1-2, Docket Sheet at 2.)

         Following a five-day jury trial in November 2009, Petitioner was convicted of attempted murder and elevated aggravated assault, but was acquitted on the charge of reckless conduct with a dangerous weapon. (Judgment and Commitment at 1, Docket Sheet at 5-6.) The court sentenced Petitioner to concurrent prison terms of 27 years, with all but 17 years suspended, followed by four years of probation. (Judgment and Commitment at 1, Docket Sheet at 8-9.)

         In September 2010, the Law Court denied Petitioner’s request to appeal from his sentence. (State v. Brown, No. SRP-10-96, Order Denying Leave to Appeal from Sentence.) On February 10, 2011, the Law Court, in a memorandum of decision, affirmed the conviction. (State v. Brown, No. Cum-10-95, Mem 11-22 (Feb. 10, 2011).)

         On February 7, 2012, Petitioner retained counsel and filed a petition for post-conviction review. (Brown v. State, No. CUMCD-CR-2012-01161, Post-conviction Petition, Docket Sheet at 1.) The court held an evidentiary hearing on the post-conviction petition in July 2014. (Docket Sheet at 3.) At the hearing, Petitioner waived his claim that counsel was ineffective because counsel failed to obtain expert testimony on the issue of self-defense. (Post-conviction Petition at 7; Post-conviction Tr. at 4, 76-77.) In August 2014, Petitioner retained a different attorney, who subsequently filed Petitioner’s post-hearing brief. (Docket Sheet at 3-4.)

         On December 15, 2014, the court, in a written decision with findings of facts, denied post-conviction relief. (Post-conviction Decision and Order, Docket Sheet at 4.)[1] On December 31, 2014, Petitioner filed a notice of discretionary appeal to the Law Court. (Brown v. State, No. Cum-14-556, Docket Sheet at 1.) In February 2015, Petitioner filed a memorandum in support of a certificate of probable cause. (Id.) On March 10, 2015, the Law Court denied a certificate of probable cause. (Order Denying Certificate of Probable Cause, Docket Sheet at 2.)[2]

         In September 2015, Petitioner filed a motion to correct or reduce the sentence. (State v. Brown, No. PORSC-CR-2008-01540, Docket Sheet at 12.) On December 31, 2015, the Law Court dismissed Petitioner’s appeal from the denial of the motion. (State v. Brown, No. Cum-15-639, Order Dismissing Appeal, Docket Sheet at 1-2.) The Law Court concluded that because the motion was not filed within one year of the imposition of the sentence in accordance with M.R.U. Crim. P. 35(a), (c)(1), jurisdiction was lacking in both the Unified Criminal Docket and the Law Court, (Order Dismissing Appeal, Docket Sheet at 2.)

         Petitioner states in his section 2254 petition that he signed the petition on March 7, 2016, and that he placed it in the prison mailing system on March 8, 2016. (Petition at 16.) The petition was filed on March 14, 2016. (Id. at 1.)

         II. Discussion

         A. Relevant Legal Standards

         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.”

         1. Statute of limitation and equitable tolling

         Title 28 U.S.C. § 2244(d) “establishes a 1-year limitations period for state prisoners to file for federal habeas relief, which ‘run[s] from the latest of’ four specified dates.” Gonzalez v. Thaler, __ U.S. __, __, 132 S.Ct. 641, 652 (2012).[3]

         Statutory tolling applies while a properly filed state post-conviction case is pending. See 28 U.S.C. § 2244(d)(2). The Supreme Court has held that section 2244(d) is also “subject to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). “We have previously made clear that a ‘petitioner’ is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)) (emphasis deleted). “The diligence required for equitable tolling purposes is reasonable diligence.” Id. at 653 (quotation marks omitted).

         2. Exhaustion

         A petition may not be granted if the petitioner does not first exhaust available state court remedies. See 28 U.S.C. § 2254(b), (c).[4] “Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the State the ‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam)) (quotation marks omitted). In Baldwin, the Court noted that “[t]o provide the State with the necessary ‘opportunity, ’ the prisoner must ‘fairly present’ his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim.” Id. (quoting Duncan, 513 U.S. at 365–66).[5] However, a petition may be denied on the merits, notwithstanding the petitioner’s failure to exhaust state court remedies. 28 U.S.C. § 2254(b)(2).

         3. Procedural default

         If a state court has determined that a petitioner’s claim is procedurally defaulted on state law grounds, the state court’s ruling constitutes an “independent and adequate state law ground” that precludes federal habeas relief, unless the petitioner can demonstrate either cause for the default and prejudice, or that “a miscarriage of justice” would result if relief is denied. See Barbosa v. Mitchell, 812 F.3d 62, 67-68 (1st Cir. 2016) (quotation marks omitted) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)); Lee v. Corsini, 777 F.3d 46, 62 (1st Cir. 2015) (requiring a showing of actual innocence as part of a demonstration that failure to provide relief would result in a “‘fundamental miscarriage of justice’”) (quoting Harris v. Reed, 489 U.S. 255, 262 (1989)).

         4. Review of state court adjudication on the merits

         Section 2254(d) provides that habeas relief is not available on claims that have been adjudicated on the merits in the state court, unless the state court adjudication was contrary to or an unreasonable application of federal law, or it involved an unreasonable determination of the facts.[6] “‘A state court’s determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court’s decision.’” Woods v. Etherton, __ U.S. __, __, 136 S.Ct. 1149, 1151 (2016) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)) (quotation marks omitted). Claims of ineffective assistance of counsel are subject to a “‘doubly deferential’” standard of review, in deference to both the state court and defense counsel. Id. (quoting Cullen v. Pinholster, 563 U.S. 170, 190 (2011)). A state court’s findings of fact are presumed correct, and a petitioner has the burden to rebut that presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).[7]

         A federal court’s “deference” to the statutory presumption of correctness “extends not only to express findings of fact, but to the implicit findings of the state court.” Garcia v. Quarterman, 454 F.3d 441, 444 (5th Cir. 2006); see also Campbell v. Vaughn, 209 F.3d 280, 285–86 (3d Cir. 2000) (“In interpreting [28 U.S.C. § 2254(e)(1)], the Supreme Court has held that an implicit finding of fact is tantamount to an express one, such that deference is due to either determination.”) (citing Parke v. Raley, 506 U.S. 20, 35 (1992); Marshall v. Lonberger, 459 U.S. 422, 432–33 (1983); LaVallee v. Delle Rose, 410 U.S. 690, 692 (1973) (per curiam)).

         5. Ineffective assistance of counsel

         Strickland v. Washington, 466 U.S. 668, 687-89 (1984), sets forth the federal constitutional standard by which the conduct of attorneys is evaluated in post-conviction claims. Strickland requires a petitioner to “establish both that counsel's representation fell below an objective standard of reasonableness and that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Turner v. United States, 699 F.3d 578, 584 (1st Cir. 2012) (citing Strickland, 466 U.S. at 688). The Court need not “address both components of the inquiry if the defendant makes an insufficient showing on one . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Strickland, 466 U.S. at 697.

         On federal habeas review, the court does not conduct an independent review under Strickland: “Since we are considering a habeas challenge, we are not actually tasked with deciding whether [the petitioner’s] counsel’s performance fell short of Strickland’s requirements; rather, the ‘pivotal question is whether the state court’s application of the Strickland standard was unreasonable, ’” pursuant to section 2254(d)(1). Hensley v. Roden, 755 F.3d 724, 736 (1st Cir. 2014) (quoting Harrington, 562 U.S. at 101). “A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Harrington, 562 U.S. at 101.

         B. Grounds Asserted and Analysis

         1. Statute of limitation and equitable tolling

         The State contends Petitioner did not file timely his petition. (Response at 5.) Petitioner argues essentially that he filed the section 2254 petition timely under 28 U.S.C. § 2244(d)(1)(A), because he filed it within one year of the Law Court’s dismissal of Petitioner’s appeal from the denial of his motion to correct or reduce the sentence. (Petition at 14.) In the alternative, Petitioner argues that the petition is timely under the doctrine of equitable tolling. (Id. at 14-15.)

         The petition was not filed timely under section 2244(d)(1)(A). The one-year limitation period began to run on May 10, 2011, which was the date on which the judgment became final by the conclusion of direct review.[8] A total of 1, 764 days elapsed from and including May 10, 2011, to but excluding March 8, 2016, which was the date on which Petitioner placed his section 2254 petition in the prison mailing system. A significant portion of that period was tolled, pursuant to section 2244(d)(2), while Petitioner’s post-conviction petition was pending in state court; specifically, the 1, 127-days that elapsed from and including February 7, 2012, when Petitioner filed his state court petition, to but excluding March 10, 2015, when the Law Court denied a certificate of probable cause, do not count toward the 365-day limitation period.[9] Nonetheless, the 637 countable days (1, 764 – 1, 127 = 637) amount to more than the 365-day limitation period, and, therefore, the petition was not filed timely.[10]

         Petitioner argues alternatively that he is entitled to equitable tolling the limitation period. He contends that his first retained post-conviction counsel, i.e., the counsel who represented him through the evidentiary hearing, gave him “[misleading] information” in a number of ways, and “it is entirely possible” that counsel gave him inaccurate information about the limitation period governing his section 2254 petition. (Petition at 14-15.) Petitioner states in conclusion: “If necessary, I am prepared to make a claim of equitable tolling that is much more detailed and specific.” (Id.) Petitioner further contends that his first retained counsel was “egregious, ” “ineffective, ” and falsely told him, in essence, that regardless of ...


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