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Freeman v. State

United States District Court, D. Maine

June 6, 2017

ANDREW J. FREEMAN, Petitioner,
v.
STATE OF MAINE, [1] Respondent

          RECOMMENDED DECISION ON 28 U.S.C. § 2254 PETITION

          John C. Nivison U.S. Magistrate Judge

         In this action, Petitioner Andrew J. Freeman seeks relief pursuant to 28 U.S.C. § 2254. (Petition, ECF No. 1; Amended Petition, ECF No. 20.) Following a jury trial, Petitioner was convicted of aggravated attempted murder, arson, and burglary. The Maine Law Court affirmed the convictions and the sentence. State v. Freeman, 2014 ME 35, 87 A.3d 719. Following an evidentiary hearing, the Superior Court denied Petitioner's petition for post-conviction review, and the Law Court denied discretionary review.

         In his section 2254 petition, Petitioner asserts several claims of ineffective assistance of counsel. (Petition at 5; Attachment to Petition, ECF No. 1-1 at 1-2; Amended Petition at 2-4.) Petitioner exhausted the following claims in state court: (1) that counsel provided ineffective assistance regarding plea offers; (2) that counsel failed to object to the prosecutor's reference in closing argument to the crime of stalking, with which Petitioner had not been charged or convicted, and the prosecutor's alleged reference to Petitioner's decision not to testify at trial; (3) that counsel failed to prepare Petitioner adequately for the sentencing hearing; and (4) that counsel failed to investigate sufficiently before counsel requested damaging records regarding Petitioner from the Maine Department of Health and Human Services (DHHS). Petitioner also alleges several unexhausted claims, including that counsel did not disclose to Petitioner that counsel was a personal friend of a state witness. The State requests summary dismissal. (Response, ECF No. 3.)

         After a review of the section 2254 petition, the State's request for dismissal, and the record, I recommend the Court grant the State's request, and dismiss the petition.[2]

         I. Factual Background and Procedural History

         Following a jury trial in September 2012, Petitioner was convicted of aggravated attempted murder (Class A), 17-A M.R.S. § 152-A(1)(A); aggravated attempted murder (Class A), 17-A M.R.S. § 152-A(1)(B); arson (Class A), 17-A M.R.S. § 802(1)(B)(2); and burglary (Class B), 17-A M.R.S. § 401(1)(B)(4). (State v. Freeman, No. SOPSC-CR-2011-00558, Judgment and Commitment at 1, Docket Record at 3-7.) Freeman, 2014 ME 35, ¶¶ 1, 8, 87 A.3d 719. In October 2012, counsel filed a motion to produce Petitioner's DHHS records for sentencing, and the court granted the motion. (Docket Record at 4.)

         In February 2013, on each of the counts of aggravated attempted murder, the court sentenced Petitioner to a prison term of 50 years, with all but 40 years suspended, to be followed by a term of four years of probation, with the sentences to be served concurrently. (Judgment and Commitment at 1, Docket Record at 5-6.) The court sentenced Petitioner to a prison term of 30 years on the arson count, and to a prison term of 10 years on the burglary count, with the sentences to be served concurrently with the term on Count 1 for aggravated attempted murder. (Judgment and Commitment at 1, Docket Record at 7.)

         Petitioner appealed from the convictions and the sentence, and in March 2014, the Law Court affirmed. Freeman, 2014 ME 35, ¶ 1, 87 A.3d 719. Petitioner did not file a petition for a writ of certiorari in the United States Supreme Court.

         In April 2014, Petitioner filed a petition in state court for post-conviction review. (Freeman v. State, No. SOPSC-CR-2014-00144, Docket Record at 1; State Court Petition.) Counsel was appointed in July 2014, and in November 2014, an amended petition was filed. (Docket Record at 1-2; Amended State Court Petition.) The Superior Court held a two-day evidentiary hearing in March 2015, and in May 2015, the court denied the petition. (Order at 1, 8.)

         In its decision on Petitioner's request for post-conviction review, the state court characterized Petitioner's claim as including the following: that trial counsel failed to prepare adequately for trial; that trial counsel failed to give sound advice regarding whether Petitioner should accept plea offers, whether Petitioner should exercise his right to a jury trial, and whether Petitioner should testify at trial; and that trial counsel failed to prepare sufficiently for sentencing. (Id. at 2.) The court concluded trial counsel's performance was not substandard, and Petitioner was not prejudiced with respect to any of his allegations, including counsel's request for the DHHS documents. (Id. at 4-8.) The court also found that no evidence was presented, or argument made, that appellate counsel provided ineffective assistance. (Id. at 7-8.)

         In support of his request for discretionary review by the Law Court of the trial court's denial of his request for post-conviction review, Petitioner alleged that counsel failed to advise him properly regarding the State's plea offers (Memorandum in Support of Certificate of Probable Cause at 9); that counsel failed to object to trial testimony or to the prosecutor's references in closing argument that Petitioner had stalked one of the victims, and that he had engaged in prior acts of sexual misconduct (id. at 7); that counsel failed to object to the State's alleged reference to Petitioner's failure to testify at trial (id. at 8); that counsel requested Petitioner's DHHS records for sentencing and the records proved harmful to Petitioner (id. at 3-4); that counsel characterized Petitioner's prior misdemeanor crimes as minor and mitigating factors, whereas the court found the prior crimes were aggravating factors (id. at 5-6); and that counsel failed to prepare Petitioner sufficiently for sentencing (id. at 6-7). In October 2015, the Law Court denied discretionary review. (Freeman v. State, No. Oxf-15-330, Docket Record at 2.)

         Petitioner states that he placed his section 2254 petition in the prison mailing system on October 11, 2016; the petition was filed on the docket on October 17, 2016. (Petition at 1, 15.)

         In April 2017, the Court granted Petitioner's motion for leave to file an amendment to the section 2254 petition. (Order, ECF No. 19.) In the amended petition, Petitioner alleges he did not understand the State's plea offers, and he includes a related claim of ineffective assistance. (Amended Petition at 2-4.) The State argues that the claim in the amended petition is not substantial, that the record does not support the claim, and that Petitioner was not prejudiced. (Response to Motion to Amend, ECF No. 17 at 1-2.)

         II. Discussion

         A. Legal Standards

         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.” Absent circumstances not relevant to Petitioner's case, a petitioner is required to exhaust available state court remedies before he seeks federal habeas review. 28 U.S.C. § 2254(b), (c).[3] “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).

         To exhaust a claim fully in state court in Maine, a petitioner must request discretionary review by the Law Court. See 15 M.R.S. § 2131. The Supreme Court has held that a procedural default bars federal review absent a demonstration of cause for the default and prejudice to the petitioner:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991).[4]

         In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court recognized a “narrow exception” to its holding in Coleman, based on equity, not constitutional law: “Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” 566 U.S. at 9, 16. However, when the procedural default relates to post-conviction counsel's actions at the discretionary-review stage rather than at the initial-review stage of the collateral proceedings, habeas relief is not available:

The holding in this case does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts. It does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial . . . .

Martinez, 566 U.S. at 16 (citations omitted).

         As to federal habeas claims that were adjudicated on the merits in state court, the federal court may not grant relief unless (1) the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” pursuant to 28 U.S.C. § 2254(d)(1); or (2) the decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” pursuant to section 2254(d)(2).[5] See Brumfield v. Cain, __U.S. __, __, 135 S.Ct. 2269, 2276 (2015) (noting that a state court's conclusion that the record included “no evidence” on an issue was reviewed under section 2254(d)(2)).

         As to review under section 2254(d)(1), “[i]t is settled that a federal habeas court may overturn a state court's application of federal law only if it is so erroneous that ‘there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents.'” Nevada v. Jackson, __ U.S. __, __, 133 S.Ct. 1990, 1992 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)).

         The First Circuit has identified the following as some of the guidelines that may be used to determine whether a state court decision was objectively unreasonable under section 2254(d)(1):

(1) The focus of the inquiry is on the state court decision;
(2) Even with the deference due by statute to the state court's determinations, the federal habeas court must itself look to ‘the totality of the evidence' in evaluating the state court's decision;
(3) The failure of the state court to consider at all a key argument of the defendant may indicate that its conclusion is objectively unreasonable; however, the paucity of reasoning employed by the state court does not itself establish that its result is objectively unreasonable;
(4) The failure of a state court to give appropriate weight to all of the evidence may mean that its conclusion is objectively unreasonable; and
(5) The absence of cases of conviction precisely parallel on their facts does not, by itself, establish objective unreasonableness.

Hurtado v. Tucker, 245 F.3d 7, 18 (1st Cir. 2001). “The ultimate question on habeas . . .is not how well reasoned the state court decision is, but whether the outcome ...


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