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Theriault v. State

United States District Court, D. Maine

May 19, 2017

MARK J. THERIAULT, Petitioner,
STATE OF MAINE, [1] Respondent


          John C. Nivison U.S. Magistrate Judge.

         Petitioner Mark J. Theriault seeks relief pursuant to 28 U.S.C. § 2254. (Petition, ECF No. 1.) Petitioner was convicted of unlawful sexual contact, and the state court sentenced him to a term of sixteen years in prison, with all but eight years suspended, to be followed by six years of probation.

         In state court, Petitioner sought post-conviction review. Although the trial court denied Petitioner's request for relief, on discretionary appellate review, the Law Court remanded to the trial court two claims of ineffective assistance of counsel for reconsideration under the prejudice prong of the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Theriault v. State, 2015 ME 137, 125 A.3d 1163. The remanded claims involved whether Petitioner was prejudiced by either (1) counsel's failure to cross-examine the victim as to whether Petitioner had a PlayStation at his house, or (2) counsel's failure to introduce evidence of the victim's inconsistent statements made during a forensic evaluation conducted by The Spurwink Child Abuse Program. Theriault, 2015 ME 137, ¶¶ 27-28, 125 A.3d 1163.[2]

         On remand, the Superior Court concluded that Petitioner had not demonstrated ineffective assistance of counsel under either prong of the Strickland test. The Law Court denied further discretionary review.

         In support of his ineffective assistance claims in this proceeding, Petitioner relies in part on a Maine Supreme Judicial Court order in a separate bar disciplinary proceeding involving trial counsel. In its order on the bar disciplinary matter, the Supreme Judicial Court concluded that counsel had violated several professional ethics rules in the course of his representation of Petitioner. Bd. of Overseers of the Bar v. Hanson, No. BAR-13-21 (June 2, 2014) (Mead., J.); see United States v. Mercado, 412 F.3d 243, 247 (1st Cir. 2005) (noting that the Court may take judicial notice of state court records). Petitioner argues that counsel's errors, as determined in the bar disciplinary proceeding, establish that counsel's performance was constitutionally deficient.

         Petitioner's section 2254 claims are focused on counsel's pre-trial and trial performance. Petitioner fully exhausted all of his claims in state court. The State has requested dismissal of Petitioner's section 2254 petition on the merits. (Response, ECF No. 4).

         After a review of the section 2254 petition and the State's request for dismissal, I recommend the Court grant the State's request, and dismiss the petition.

         I. Factual Background and Procedural History

         Petitioner was indicted in July 2008 for unlawful sexual contact with a minor under 12 years old (Class A), 17-A M.R.S. § 255-A(1)(F-1).[3] (State v. Theriault, No. CARSC CR 2008-00262, Indictment, Docket Record at 1.)[4] The indictment alleged that the sexual contact included penetration.[5] (Indictment.) On February 7, 2011, a one-day trial was held at which the victim, the victim's sister, and a hospital nurse examiner testified; the jury returned a guilty verdict. (Trial Tr. at 43-48, 76, 87, 130, Docket Record at 4.) On February 9, 2011, the Court sentenced Petitioner to a term of 16 years, with all but eight years suspended, to be followed by a term of six years of probation. (Judgment and Commitment, Docket Record at 5.)

         In February 2011, Petitioner retained new counsel and filed a motion for a new trial. (Docket Record at 7.) In June 2011, the Sentence Review Panel of the Maine Law Court denied leave to appeal from the sentence. (State v. Theriault, No. SRP-11-104, Docket Record at 2.) On August 19, 2011, the Law Court dismissed Petitioner's appeal from the conviction due to lack of prosecution. (State v. Theriault, No. ARO-11-103, Order Dismissing Appeal, Docket Record at 2.) In October 2012, the trial court denied the motion for a new trial. (Theriault, No. CARSC CR 2008-00262, Docket Record at 8.)

         On August 17, 2012, Petitioner filed a pro se petition for state court post-conviction review. (Theriault v. State, No. CARSC-CR-2012-00437, Docket Record at 1.) In November 2012, Petitioner retained his appellate counsel to represent him in the post-conviction proceeding, and in June 2013, Petitioner filed an amended petition. (Docket Record at 1-2.) Petitioner alleged the following claims of ineffective assistance: (1) insufficient communication between counsel and Petitioner; (2) failure to engage a private investigator or to conduct an adequate pretrial investigation; (3) failure to develop and present a defense strategy; (4) failure to secure the defense witnesses Petitioner suggested; (5) failure to object to evidence; (6) failure to cross-examine the victim regarding inconsistencies in her allegations; and (7) substandard advice to Petitioner as to whether to testify at trial (Petitioner maintained he was innocent and wanted to testify). (Pro se State Court Petition at 3-4; Amended State Court Petition at 1-2.)

         After an evidentiary hearing in September 2013, the court denied the petition in March 2014. (Docket Record at 2; Decision.) In its decision following the evidentiary hearing, the court characterized the allegations as follows: (1) failure to hire a private investigator; (2) failure to subpoena critical witnesses at trial; (3) failure to obtain an expert witness regarding the issue of suggestive interviewing of the minor victim; (4) failure to obtain an expert witness regarding the lack of physical findings; (5) failure to obtain exculpatory agency records; (6) failure to challenge the competency of the minor victim to testify; and (7) failure to obtain character evidence pertaining to Petitioner. (Decision at 2.)

         The Superior Court concluded that the prejudice prong of the Strickland test determined the outcome, and that Petitioner had not demonstrated prejudice with respect to any of the allegations of ineffective assistance of counsel. (Decision at 3-9.) In March 2014, Petitioner requested discretionary review of the post-conviction decision. (Theriault v. State, No. Aro-14-158, Docket Record at 1.)

         In June 2014, the Supreme Judicial Court issued its order in the bar disciplinary matter regarding Petitioner's trial counsel. Hanson, No. BAR-13-21. The Court made a number of findings based on stipulated facts. In addition, the Court concluded:

Attorney Hanson has acknowledged various errors on his part in relation to his representation of Mark Theriault. He understands and agrees that he did not utilize the court-approved private investigator to independently investigate the case or to pursue the areas of investigation suggested by his client prior to the trial. He understands and agrees that he did not spend sufficient time with his client to prepare him for the trial, or to make his decision regarding whether he would testify. He also understands and agrees that he did not request additional time to prepare his case for sentencing, or to prepare his client and the other witnesses for the sentencing proceeding. Attorney Hanson understands and agrees that by those failures, he failed to reasonably communicate with his client; to provide competent representation; or to act with reasonable diligence in his client's defense. Although his actions were not intentional attempts to violate the Maine Rules of Professional Conduct they nevertheless constitute violations of Rules 1.1, 1.3, 1.4 and 8.4(a)(d).

Hanson, No. BAR-13-21, at 6-7.[6] Meanwhile, the Law Court issued a certificate of probable cause, which allowed Petitioner to appeal from the post-conviction ruling. (Theriault, No. Aro-14-158, Docket Record at 2.)

         In December 2015, the Law Court held that the Superior Court misapplied the prejudice prong of the Strickland test:

By employing only a portion of the Strickland principle, the court in effect employed the outcome-determinative test rejected in Strickland because it determined only whether the outcome was likely different than it would have been if the petitioner had been properly represented, without considering whether the guilty verdict and resulting conviction were unreliable and not worthy of confidence.

Theriault, 2015 ME 137, at ¶ 25, 125 A.3d 1163. The Law Court focused particularly on the test the Superior Court applied to the claims that counsel failed to present evidence that Petitioner did not have a PlayStation at his house, and that counsel failed “to present any evidence of the prior exculpatory statements made by the victim during the Spurwink evaluation . . . .” Id. ¶¶ 27-28. The Law Court also concluded that Petitioner was not entitled to a presumption of prejudice, but rather must prove that counsel's alleged errors caused him actual prejudice; the Court noted that its review of the presumption issue was for obvious error because Petitioner had not raised the issue in the Superior Court. Id. ¶¶ 16-18.

         Regarding Petitioner's other claims, the Law Court concluded:

For several of Theriault's challenges to Attorney Hanson's conduct, Theriault offered no evidence whatever of how he was prejudiced by those alleged failures. For example, Theriault did not present any evidence about what information a private investigator might have found to provide an exculpatory explanation for the victim's accusations. On those points, Theriault failed to demonstrate entitlement to post-conviction relief regardless of how one might characterize the element of prejudice, because the complete absence of any evidence of prejudice would preclude any prospect of proving that the guilty verdict was unreliable and not entitled to confidence.

Id. ¶ 26. The Law Court vacated the judgment on the post-conviction petition and remanded the matter to the trial court for further proceedings. Id. ¶ 30.

         In December 2015, the parties each submitted written argument on the issues remanded to the trial court. (Theriault, No. CARSC-CR-2012-00437, Docket Record at 3.) In March 2016, the Superior Court issued a decision in which it applied both prongs of the Strickland test to the claims regarding the PlayStation cross-examination and the Spurwink evidence. (Reconsidered Decision at 1.) The Superior Court concluded that counsel's performance was not deficient, and Petitioner was not prejudiced, as to either issue. (Id. at 2-4.)

         Petitioner requested discretionary review of the Superior Court's decision. (Theriault v. State, No. Aro-16-190.) Counsel was appointed, and Petitioner argued that the Superior Court once again had misapplied the Strickland standard. (Docket Record at 2, Memorandum in Support of Certificate of Probable Cause at 1-2.) Petitioner argued that counsel's failure to impeach the victim constituted deficient performance, and that the cumulative effect of counsel's errors prejudiced Petitioner. (Id. at 7-13.)

         In September 2016, the Law Court denied discretionary review. (Order Denying Certificate of Probable Cause.) The Law Court concluded: “After review of the record, which demonstrates that Theriault received effective assistance of counsel throughout the entirety of the proceeding, the Court has determined that no further hearing or other action is necessary to a fair disposition.” (Id.)

         Petitioner states that he placed his section 2254 petition in the prison mailing system on November 15, 2016; the petition was filed on November 21, 2016. (Petition at 1, 18.) The State filed its response in December 2016. In January 2017, Petitioner filed a reply. (ECF No. 7.)

         II. ...

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