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Theriault v. State

United States District Court, D. Maine

August 31, 2017

MARK J. THERIAULT, Petitioner,
v.
STATE OF MAINE, Respondent.

          ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         On 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.

         The 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.

         I. PROCEDURAL HISTORY

         A. Trial and Direct Appeal

         On July 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).[1] State v. Theriault, No. CARSC-CR-2008-00262, Indictment (Docket Record at 1).[2] The indictment alleged that the sexual contact included penetration.[3] 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).

         Mr. 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).

         B. State Post-Conviction Review

         On 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).

         The 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).

         Meanwhile, 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.

         On June 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.[4] 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 A.3d 1163.

         Nevertheless, 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 confidence.” Id.

         However, 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.

         In 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.

         Mr. 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.

         On 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 disposition.” Id.

         C. Federal Post-Conviction Review

         On November 21, 2016, Mr. Theriault filed a § 2254 petition with this Court.[5] Pet. Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF No. 1) (Habeas Pet.).[6] 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).

         On May 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.).

         II. LEGAL STANDARD

         As the 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).

         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.” 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 ...

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