United States District Court, D. Maine
MARK J. THERIAULT, Petitioner,
STATE OF MAINE, Respondent.
ORDER AFFIRMING THE RECOMMENDED DECISION OF THE
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
February 8, 2011, a state court jury found Mark Theriault
guilty of unlawful sexual contact and on February 9, 2011, a
state superior court justice sentenced him to sixteen
years' incarceration, all but eight years suspended.
Having exhausted state court challenges to the conviction and
sentence, Mr. Theriault comes to federal court for
vindication, declaring that he has been “falsely
accused and wrongfully convicted of this crime for which I
have been wrongfully imprisoned for.” What makes Mr.
Theriault's case unusual is that the Maine Supreme
Judicial Court found that his defense lawyer violated Rules
1.1, 1.3, 1.4 and 8.4(a)(d) of the Maine Rules of
Professional Conduct in his representation of Mr. Theriault
and for this reason and for others, the Maine Law Court
imposed discipline upon his lawyer. Despite this
determination, the state courts concluded that this same
defense counsel rendered effective assistance of counsel in
his case and that his professional conduct did not prejudice
Mr. Theriault's defense.
Court carefully reviewed Mr. Theriault's allegations and
after doing so, concluded, like the Magistrate Judge, that
Mr. Theriault has not demonstrated that an evidentiary
hearing is warranted, that his allegations justify relief
under 28 U.S.C. § 2254, or that a certificate of
appealability should issue. In these rare circumstances, the
Court is conscious that Mr. Theriault deserves a thorough
explanation for why this Court has concluded his petition
under 28 U.S.C. § 2254 must fail. The Court's
analysis, which incorporates and expands upon a similar
discussion by the Magistrate Judge, follows.
Trial and Direct Appeal
11, 2008, a grand jury indicted Mr. Theriault for unlawful
sexual contact with a minor under twelve years of age, in
violation of 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. Id. On February 7, 2011,
a jury returned a guilty verdict following a one-day trial at
which the victim, the victim's sister, and a hospital
nurse testified. Trial Proc. 130:12-15 (Docket
Record at 4) (Trial Tr.). On February 9, 2011, the
State Court sentenced Mr. Theriault to sixteen years of
imprisonment, with all but eight years suspended, to be
followed by a term of six years of probation. J. and
Commitment (Docket Record at 5).
Theriault filed a notice of appeal and an application for
leave to appeal his sentence on February 14, 2011. (Docket
Record at 6). On February 17, 2011, Mr. Theriault retained a
new attorney 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 Mr. Theriault's application for
leave to appeal his sentence. State v. Theriault,
No. SRP-11-104 (Docket Record at 2). On August 19, 2011, the
Law Court dismissed Mr. Theriault's appeal from the
conviction due to lack of prosecution. State v.
Theriault, No. ARO-11-103, Order Dismissing
Appeal (Docket Record at 2). On October 31, 2012, the
trial court denied Mr. Theriault's motion for a new
trial. State v. Theriault, No. CARSC-CR-2008-00262,
Order Den. Mot. for New Trial (Docket Record at 8).
State Post-Conviction Review
August 17, 2012, Mr. Theriault filed a pro se petition for
post-conviction review with the state trial court.
Theriault v. State, No. CARSC-CR-2012-00437,
Pet. for Post-Conviction Rev. (Docket Record at 1).
On November 5, 2012, Mr. Theriault retained his appellate
counsel to represent him in the post-conviction proceeding,
and on June 11, 2013, Mr. Theriault filed an amended petition
alleging ineffective assistance of trial counsel.
Post-Conviction Rev. Am. Pet. (Docket Record at 2).
trial court held an evidentiary hearing on the petition on
September 19, 2013. Evid. Hr'g (Docket Record at
2); Tr. (Docket Record at 2) (Evid. Tr.).
Both Mr. Theriault and his trial counsel, Attorney Allen
Hanson, testified at the evidentiary hearing. Id.
Following the hearing, on March 11, 2014, the trial court
denied the petition. Decision (Docket Record at 2).
In its decision, the court summarized Mr. Theriault's
allegations of ineffective assistance 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; (7) failure to
obtain character evidence pertaining to Mr. Theriault; (8)
failure to impeach the minor victim based on inconsistencies
in her allegations; and (9) failure to adequately counsel Mr.
Theriault regarding his decision not to testify. Id.
at 3-9. The trial court concluded that the prejudice prong of
the test established in Strickland v. Washington,
466 U.S. 668 (1984), controlled the outcome, and that Mr.
Theriault had not demonstrated prejudice with respect to any
of the allegations of ineffective assistance of counsel.
Id. On March 31, 2014, Mr. Theriault requested
discretionary review of the post-conviction decision from the
Law Court. Theriault v. State, No. Aro-14-158,
Notice of Appeal (Docket Record at 1).
on June 2, 2014, the Supreme Judicial Court issued an order
in a bar disciplinary matter regarding Attorney Hanson, Mr.
Theriault's trial counsel. Bd. of Overseers of the
Bar v. Hanson, No. BAR-13-21 (June 2, 2014) (Mead., J.).
The Maine Supreme Judicial Court made a number of findings
based on stipulated facts. Id. at 1-2, 5-6. In
addition, the Maine Law 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).
Id. at 6-7.
16, 2014, the Law Court issued a certificate of probable
cause, permitting Mr. Theriault to appeal from the trial
court's post-conviction ruling. Theriault v.
State, No. Aro-14-158 (Docket Record at 2). On December
10, 2015, the Law Court vacated the trial court's
judgment and remanded the case for further proceedings.
Theriault v. State, 2015 ME 137, at ¶ 30, 125
A.3d 1163. As an initial matter, the Law Court
concluded that Mr. Theriault was not entitled to a
presumption of prejudice; rather, Mr. Theriault was required
to prove that counsel's alleged errors caused actual
prejudice. Id. ¶¶ 16-18. The Law Court
also held that the trial 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 v. State, 2015 ME 137, at ¶ 25, 125
the Law Court noted that for several of Mr. Theriault's
challenges to Attorney Hanson's conduct, Mr. Theriault
offered no evidence of prejudice. Id. ¶ 26.
Therefore, the Law Court concluded that Mr. 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
the Law Court concluded that two of Mr. Theriault's
claims of prejudice warranted reconsideration under the
proper standard, including Mr. Theriault's claim that
counsel failed to impeach the victim by presenting evidence
that he did not have a PlayStation at his house, as well as
his claim that counsel failed to present any evidence of
prior exculpatory statements that the victim made during her
Spurwink Child Abuse evaluation. Id. ¶¶
27-29. Consequently, the Law Court 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 v.
State, No. CARSC-CR-2012-00437, Post-Conviction Rev.
Pet./Appellant's Br. (Docket Record at 3);
Theriault v. State, No. CARSC-CR-2012-00437,
State's Answer to Remand Order (Docket Record at
3). On March 3, 2016, the trial court issued a decision in
which it applied both prongs of the Strickland test
to the claims regarding the PlayStation and the Spurwink
evidence. Theriault v. State, No.
CARSC-CR-2012-00437, Recons. Decision (Docket Record
at 3) (Recons. Dec.). The trial court concluded that
counsel's failure to impeach the victim by presenting
evidence about the PlayStation or the Spurwink evaluation was
not constitutionally deficient and did not prejudice Mr.
Theriault. Id. at 2-4.
Theriault requested discretionary review of the trial
court's decision. Theriault v. State, No.
Aro-16-190, Notice of Appeal (Docket Record at 2).
Counsel was appointed, and Mr. Theriault argued that the
trial court once again had misapplied the Strickland
standard. Theriault v. State, No. Aro-16-190,
Mem. in Supp. of Certificate of Probable Cause at
1-2 (Docket Record at 2). Mr. Theriault asserted that trial
counsel's failure to impeach the victim based on her
inconsistent statements constituted deficient performance and
that the cumulative effect of counsel's errors prejudiced
Mr. Theriault. Id. at 7-13.
September 19, 2016, the Law Court denied discretionary
review. Theriault v. State, No. Aro-16-190,
Order Den. Certificate of Probable Cause (Docket
Record at 3). 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
Federal Post-Conviction Review
November 21, 2016, Mr. Theriault filed a § 2254 petition
with this Court. Pet. Under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State
Custody (ECF No. 1) (Habeas
Pet.). The State answered on December 26, 2016.
Resp't's Answer to Pet. for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 4). Mr.
Theriault replied on January 9, 2017. Pet.'s Reply to
Att'y Gen.'s Answer Pursuant to 28 U.S.C. §
2254 (ECF No. 7).
19, 2017, the United States Magistrate Judge issued a
recommended decision in which he recommended that the Court
dismiss Mr. Theriault's petition for habeas relief and
that the Court deny a certificate of appealability.
Recommended Decision on 28 U.S.C. § 2254 Pet.
(ECF No. 9) (Rec. Dec.). Mr. Theriault filed an
objection to the Recommended Decision on June 2, 2017.
Obj. to Recommended Decision on 28 U.S.C. §
2254 (ECF No. 10) (Pet.'s Obj.).
Magistrate Judge's Recommended Decision is on an
application for post-trial relief made by an individual
convicted of a criminal offense, this Court reviews the
Recommended Decision de novo. 28 U.S.C. § 636(b)(1)(B).
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.” 28 U.S.C. § 2254(a). A federal
court may not grant habeas relief based on claims that were
adjudicated on the merits in state court proceedings unless
the state adjudication:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the ...