United States District Court, D. Maine
BRANDON S. BROWN, Petitioner,
SCOTT LANDRY, Warden, Maine Correctional Center, Respondent
RECOMMENDED DECISION ON 28 U.S.C. § 2254
C. Nivison U.S. Magistrate Judge
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).
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.)
consideration of the parties’ arguments, I recommend
the Court grant the State’s request and dismiss the
Factual Background and Procedural History
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.)
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.)
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).)
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.)
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
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
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.)
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.)
Relevant Legal Standards
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.”
Statute of limitation and equitable tolling
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).
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).
petition may not be granted if the petitioner does not first
exhaust available state court remedies. See 28
U.S.C. § 2254(b), (c). “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). 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).
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)).
Review of state court adjudication on the merits
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. “‘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).
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)
Ineffective assistance of counsel
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.
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.
Grounds Asserted and Analysis
Statute of limitation and equitable tolling
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.)
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. 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. 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
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 ...