D. WARREN, JUSTICE SUPERIOR COURT
the court is an unusual second petition filed by Timothy
Wilcox for post-conviction review.
March 27, 1996 a jury found Wilcox guilty of two counts of
kidnapping, eight counts of gross sexual assault, two counts
of robbery, and one count of unlawful sexual contact.
State v. Wilcox, CR-95-881. Wilcox was sentenced in
October 1996 to consecutive sentences totaling 49 years
(Calkins, J.). Thereafter Wilcox filed a petition for post
conviction review alleging ineffectiveness of counsel, which
was denied after a hearing on June 30, 2004. Wilcox v.
State, CR-97-590 (Crowley, J.).
second petition was filed in August 2015, triggered by a May
2015 letter from the Department of Justice stating that a
witness from the FBI Laboratory had presented hair comparison
testimony "containing erroneous statements" at the
amended petition was filed on May 2, 2016, asserting the
questioned hair comparison testimony as Ground One and also
asserting additional grounds relating to the failure of trial
counsel to seek a severance and the alleged ineffectiveness
of Wilcox's original post-conviction counsel. The State
did not challenge the timeliness of petitioner's claim
with respect to the hair comparison testimony (Ground One of
the amended petition), presumably because it acknowledged
that the factual predicate of that claim could not have been
discovered through due diligence prior to the May 2015
Department of Justice letter. 15 M.R.S. §
2128-B(1)(C). However, it challenged Grounds Two and
Three because the claims asserted in those grounds were
untimely and because a second post-conviction petition cannot
be brought based on alleged ineffectiveness of
petitioner's first post-conviction counsel.
court dismissed Grounds Two and Three of the amended petition
by order dated August 24, 2016, and the case proceeded to a
hearing on Ground One of the amended petition on February 10,
2017. Thereafter both counsel for Wilcox and counsel for the
State filed post-hearing memoranda.
ordinary post-conviction review the petitioner has the burden
of showing both ineffectiveness and prejudice by a
preponderance of the evidence. The parties to this case
appear to agree that, due to the unusual circumstances of
this case, the sole issue is whether Wilcox has met his
burden of showing prejudice - whether he has shown a
reasonable probability that, absent the testimony of FBI
Agent Joseph Dizinso that has now been called into question,
the result of the proceeding would have been different.
See Theriault v. State, 2015 ME 137 ¶¶ 14,
19, 125 A.3d 1163; Manley v. State, 2015 ME 117
¶¶ 12, 18, 123 A.3d 219 (cases applying and quoting
from Strickland v. Washington, 466 U.S. 668, 687,
Court recently clarified in Theriault that in
requiring a showing of a "reasonable probability"
that the result of the proceeding would have been different,
Strickland did not necessarily require a showing
that it is likely that the outcome of the case would
have been different. 2015 ME 137 ¶¶ 19-20. The
defendant must show that there is a sufficient probability of
a different result "to undermine confidence in the
outcome of the proceeding." Strickland, 466
U.S. at 694; Theriault, 2015 ME 137 ¶ 19.
of the Evidence at Trial
convictions of Wilcox arose from charges relating to three
different individuals based on similar events that occurred
on January 26, 1995, March 17, 1995, and March 21, 1995.
respect to the events of January 26, 1995, the State offered
evidence that Wilcox offered a woman named Cynthia Levesque a
ride home around 9:00 pm in the evening but drove her to a
remote location where he forced her at gunpoint to perform
oral sex on him. According to Levesque's testimony,
Wilcox then forced her to partially undress and inserted his
penis in her vagina but was unable to maintain an erection.
He then told her to perform another oral sex act, but she
managed to open the car door and fall out. Wilcox grabbed her
pant leg and dragged her for a short distance before the
pants pulled off. He then drove off, leaving her by the side
of the road wearing nothing but a sock and a bra.
respect to the events of March 17, 1995, the State offered
evidence that Wilcox offered a ride to a woman named Judy
Stain around 12:30 am, that he did not drop her at her home
or let her out of the car as she requested but took her to a
deserted parking lot below the Eastern Prom and forced her to
perform oral sex on him at gunpoint. He then ripped her
clothes off, raped her vaginally, and inserted his gun inside
her vagina. Finally, he pushed her out of the car and drove
off, taking some of her clothes and possessions and leaving
her wearing only sneakers and socks.
with respect to the events of March 21, 1995, the State
offered evidence that Wilcox offered a woman named January
Fitzsimmons a ride at about 11:30 pm and then asked her if
she wanted to smoke marijuana. When she said yes, he drove
her to a remote location but after they smoked, he produced a
gun and forced her to perform oral sex on him. He then forced
her to take off her pants and penetrated her both anally and
vaginally but was having trouble maintaining an erection. He
then compelled her to perform oral sex on him again and to
masturbate, subsequently demanding her backpack, taking some
of her clothes, and telling her to get out of the car.
jury trial in March 1996 Wilcox was convicted of kidnapping
and 2 counts of gross sexual assault with respect to the
January 26, 1995 events involving Cynthia Levesque. He
received sentences of 16 years concurrent on all three counts
as to those offenses.
was also convicted of kidnapping, three counts of gross
sexual assault, and one count of robbery with respect to the
events of March 17, 1995 involving Judy Stain. He received
sentences of 17 years on those five counts, concurrent with
each other but consecutive to the 16 year sentence on the
counts involving Cynthia Levesque.
Wilcox was convicted of three counts of gross sexual assault
and one count of robbery with respect to the events of March
21, 1995 involving January Fitzsimmons. He received sentences
of 16 years on those four counts, concurrent with each other
but consecutive to the 17 year sentence on the counts
involving Judy Stain.
was the major issue at the trial - whether there was proof
beyond a reasonable doubt that Timothy Wilcox was the person
who had offered rides to Crystal Levesque, Judy Stain, and
January Fitzsimmons and had then subjected them to sexual
assaults at gunpoint. That evidence included the following:
• Cynthia Levesque was shown a photo array and said that
two of the photos looked like her assailant. One of those
photos (photo # 2) was of Wilcox. Without prompting, she also
testified at trial that those two photographs "kind of
looked like the guy sitting in ...