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Williams v. Liberty

United States District Court, D. Maine

April 27, 2017

RANDALL LIBERTY, [1] Warden, Maine State Prison, Respondent


          John C. Nivison U.S. Magistrate Judge.

         In this action, Petitioner Timothy J. Williams seeks relief pursuant to 28 U.S.C. § 2254. (Petition, ECF No. 1.) In January 2012, following a four-day jury trial held in December 2011, Petitioner was convicted of aggravated assault and several other offenses. The court sentenced him to a total of ten years in prison, with all but eight years suspended.

         Petitioner argues the state court erred when it denied a change of venue, and he objects to a fine or restitution. He also claims ineffective assistance of counsel regarding (1) advice as to whether Petitioner should exercise his right to a jury trial; (2) the failure to object to improper handling of blood alcohol tests; (3) the failure to offer evidence of Petitioner's character at trial; (4) the failure to obtain and offer an exculpatory dashboard video recording; and (5) the failure to prepare for sentencing.

         The State has requested dismissal on the following bases: (1) the petition is untimely under 28 U.S.C. § 2244(d); (2) Petitioner has failed to exhaust his state court remedies as to all but the claim of ineffective assistance of counsel at sentencing; and (3) Petitioner is not entitled to relief on the merits on the claim of ineffective assistance of counsel at sentencing. (Response, ECF No. 5).

         After a review of the petition and the State's request for dismissal, I conclude that the petition was filed timely, but I recommend the Court grant the State's request, and dismiss the petition, because the exhausted claim of ineffective assistance of counsel at sentencing lacks merit, and because the unexhausted claims are procedurally defaulted and lack merit.

         I. Factual Background and Procedural History

         Petitioner was indicted in 2010 on thirteen counts: aggravated assault, 17-A M.R.S. § 208(1)(B) (Class B) (Counts 1, 2); reckless conduct, 17-A M.R.S. §§ 211(1), 1252(4) (Class C) (Counts 3-8); eluding an officer, 29-A M.R.S. § 2414(3) (Class C) (Count 9); operating under the influence, 29-A M.R.S. § 2411(1-A)(C)(3) (Class C) (Count 10); driving to endanger, 29-A M.R.S. §2413(1) (Class E) (Count 11); criminal speed, 29-A M.R.S. § 2074(3) (Class E) (Count 12); and operating after suspension, 29-A M.R.S. § 2412-A(1-A)(A)(1-4) (Class E) (Count 13). (State v. Williams, No. ALFSC-CR-2010-02476 (Me. Super. Ct., York Cty.), Indictment.) After several different attorneys were appointed to represent Petitioner, in August 2011, counsel who represented Petitioner through the trial and sentencing was appointed. (Docket Record.)

         The four-day jury trial in December 2011 resulted in a guilty verdict on all counts. (Id.) The Court sentenced Petitioner in January 2012 to the following: a term of ten years, with all but eight years suspended, on Counts 1 and 2, with the terms to be served concurrently, followed by a term of three years of probation; terms of five years on each of Counts 3 through 10, and terms of six months on each of Counts 11 through 13, all to be served concurrently with the term on Count 1. (Judgment and Commitment; Docket Record.)

         Trial and sentencing counsel was permitted to withdraw, and appellate counsel was appointed in February 2012. (Docket Record.) Petitioner's first appellate counsel moved to withdraw, and new appellate counsel was appointed in June 2012. (State v. Williams, No. YOR-2012-0071, Docket Record.) On August 8, 2012, the Sentence Review Panel of the Maine Law Court denied leave to appeal from the sentence. (State v. Williams, No. SRP-12-72, Order Denying Leave to Appeal From Sentence.) On February 11, 2013, the Law Court entered Petitioner's withdrawal of the appeal from the conviction. (State v. Williams, No. YOR-2012-0071, Dismissal of Appeal.)

         On March 13, 2013, Petitioner filed a pro se petition for state court post-conviction review. (Williams v. State, No. ALFSC-CR-2013-00650, Docket Record.) Petitioner alleged that trial counsel advised him to proceed to trial because counsel had obtained an exculpatory video recording. (State Court Petition.) Petitioner alleged: “I would have accepted the plea offer but for [counsel's] erroneous assertion that such a video existed.” (Id.) He alleged that counsel advised him that he would receive a more lenient sentence if he went to trial. (Id.) Petitioner also alleged that counsel failed to advocate effectively in support of Petitioner's motion in limine to exclude the blood alcohol test results. (Id.) Finally, Petitioner alleged that counsel provided ineffective assistance at sentencing because counsel failed to offer any evidence to support mitigation. (Id.)

         An evidentiary hearing was held on the petition for post-conviction review in December 2014. (Docket Record.) In January 2015, the court denied the petition. (Id.) The court found that there was no video recording of the type alleged by Petitioner: “After careful review of the evidence, the Court concludes that no such DVD ever existed.” (Order at 1.) The court found that counsel did not tell Petitioner that he would be exonerated by a video recording. (Id. at 2.) The court found counsel to be a credible witness. (Id.) Furthermore, the court found:

[Counsel] indicated that it would not have been his practice to indicate that any evidence provided in discovery would completely exonerate a person, and it certainly was not his practice to inform any of his criminal defense clients that they would receive more lenient treatment by going to trial as opposed to accepting responsibility for any conduct for which they were ultimately convicted by virtue of a plea as opposed to a trial.

(Id.) The court concluded that counsel did not provide ineffective assistance under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). (Id.) The court also concluded that Petitioner's other trial-related claims were without merit. (Id.)

         Regarding counsel's performance at sentencing, the court noted Petitioner's allegation that counsel failed to present evidence that “indicated progress Mr. Williams had been making towards his education, as well as a significant impact he had been making with respect to his daughter's upbringing.” (Id.) The court, however, determined that counsel did not provide ineffective assistance at sentencing:

[Counsel] did do an involved oral argument and a sentencing memorandum that focused on the incident in question. A review of that memorandum and of the oral argument made by [counsel] indicates that [counsel] met the Strickland standard with respect to sentencing argument. Finally, while in an ideal world it would have been better to have had these additional details brought to the sentencing court's attention, this Court cannot conclude that based on the other factors that were utilized in analyzing the [State v. Hewey, 622 A.2d 1151 (Me. 1993)] sentencing analysis that ultimately even if this material had been brought to the sentencing judge's attention, that the underlying sentence would have been any different than what was received here.

(Id. at 2-3.)

         Petitioner sought leave to appeal from the Superior Court's post-conviction decision. (Williams v. State, No. Yor-15-74, Docket Record.) In his memorandum in support of an appeal, Petitioner presented a single claim of ineffective assistance of sentencing counsel based on the failure to present mitigating factors. (Memorandum for Petitioner.) On August 19, 2015, the Law Court, concluding there was no error, denied leave to appeal. (Order Denying Certificate of Probable Cause.)

         Petitioner states that he placed his section 2254 petition in the prison mailing system on July 19, 2016; the petition was entered on the court's docket on July 21, 2016. (Petition at 1, 15.)

         II. Discussion

         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.”

         A. Timeliness of the Section 2254 Petition

         The State argues that the petition should be dismissed because it was not filed timely under 28 U.S.C. § 2244(d)(1)(A), (2).[2] (Response at 5-6.)

         Petitioner's one-year limitation period for filing the section 2254 petition started when the judgment became final, pursuant to section 2244(d)(1)(A). A conviction is final when the “availability of direct appeal to the state courts and to [the United States Supreme Court] has been exhausted.” Jiminez v. Quarterman, 555 U.S. 113, 119 (2009) (citations and quotation marks omitted). In Petitioner's case, the availability of direct appeal to the state courts and the Supreme Court ended on February 11, 2013, with Petitioner's voluntary dismissal of his state court appeal. See Mata v. Stephens, No. 3:15-CV 0199-D, 2015 WL 4557223, at *3, 2015 U.S. Dist. Lexis 97906 (N.D. Tex. July 28, 2015) (order), 2015 U.S. Dist. Lexis 98914, at *7-8 (N.D. Tex. June 1, 2015) (recommended decision) (“Where a habeas petitioner timely appeals his conviction but later dismisses the appeal, nearly every federal court to address the issue has held that the judgment becomes final for limitations purposes on the date the appeal is dismissed.”) (quotation marks ...

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