United States District Court, D. Maine
MARK J. THERIAULT, Petitioner,
STATE OF MAINE,  Respondent
RECOMMENDED DECISION ON 28 U.S.C. § 2254
C. Nivison U.S. Magistrate Judge.
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.
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
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.
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.
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).
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.
Factual Background and Procedural History
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). (State v. Theriault, No. CARSC CR
2008-00262, Indictment, Docket Record at 1.) The indictment
alleged that the sexual contact included
penetration. (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.)
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.)
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.)
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.)
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
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
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. 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.)
December 2015, the Law Court held that the Superior Court
misapplied the prejudice prong of the Strickland
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.
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.
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.)
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.)
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.)
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.)