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Reese v. Randall Liberty

United States District Court, D. Maine

January 16, 2018

OLLAND REESE, Petitioner,
v.
RANDALL LIBERTY, Warden, Maine State Prison, Respondent

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

          JOHN C. NIVISON, U.S. MAGISTRATE JUDGE

         In this action, Petitioner Olland Reese seeks relief pursuant to 28 U.S.C. § 2254. (Petition, ECF No. 1; Amended Petition, ECF No. 33.) Following a 13-day jury trial in Maine state court in July 2003, Petitioner was convicted of murder, and the court sentenced him to 47 years in prison. The Maine Law Court affirmed the conviction and the sentence. State v. Reese, 2005 ME 87, ¶¶ 1-3 & n.2, 877 A.2d 1090. In his section 2254 petition, Petitioner asserts several claims involving alleged due process violations, ineffective assistance of trial counsel, and ineffective assistance of post-conviction counsel following a motion for a new trial and two state court post-conviction petitions.

         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.[1]

         I. Factual Background and Procedural History

         The jury found Petitioner guilty of intentional or knowing murder, 17-A M.R.S. § 201(1)(A), “for killing a sixteen-year-old girl in May 2002. The girl had been struck in the head with a blunt object and buried, with her wrists bound in duct tape, behind Reese's mother's home in Bowdoin.” State v. Reese, 2013 ME 10, ¶ 1, 60 A.3d 1277.

         Petitioner filed a section 2254 petition in 2013. (Petition, ECF No. 1.) This Court granted Petitioner's unopposed motion to stay the petition until Petitioner exhausted state court remedies. (Motion, ECF No. 3; Order, ECF No. 8.)

         The Law Court noted, in its most recent decision in Petitioner's case, that the matter had been before the Law Court four times, on (1) the direct appeal from the judgment of conviction and discretionary appeal from the sentence; (2) a request for discretionary review of a first post-conviction decision; (3) a direct appeal from the denial of a DNA-related motion for a new trial; and (4) a discretionary review of a portion of a second post-conviction decision:

This is the fourth time that Reese's case has been before us. In 2005, we affirmed Reese's 2003 conviction for murdering a sixteen-year-old girl. State v. Reese, 2005 ME 87, ¶ 1, 877 A.2d 1090; see State v. Reese, 2013 ME 10, ¶ 1, 60 A.3d 1277. In July 2009, we denied Reese's request for a certificate of probable cause after the trial court denied his first petition for post-conviction review. See Reese v. State, No. CR-06-125, 2009 WL 6631522, 2009 Me. Super. LEXIS 117 (Feb. 27, 2009). In 2013, we affirmed the trial court's denial of Reese's motion for a new trial based on DNA evidence. Reese, 2013 ME 10, ¶ 32, 60 A.3d 1277; see State v. Reese, No. CR-02-73, 2012 WL 1889249, 2012 Me. Super. LEXIS 55 (March 14, 2012).

Reese v. State, 2017 ME 40, ¶ 3, 157 A.3d 215. In the Law Court's fourth decision, the Court held that Martinez v. Ryan, 566 U.S. 1 (2012), “did not give Reese the right to challenge the effectiveness of post-conviction counsel in a subsequent post-conviction review petition.” Reese, 2017 ME 40, ¶ 9, 157 A.3d 215. Additional procedural history is discussed below where relevant to Petitioner's section 2254 claims.

         Respondent represented in its March 2017 status report that the Law Court's decision, Reese, 2017 ME 40, 157 A.3d 215, to affirm the dismissal of the remaining grounds at issue in Petitioner's second post-conviction petition, concluded the state court proceedings. (Status Report, ECF No. 30.) This Court removed the stay and granted Petitioner the opportunity to file an amended section 2254 petition. (Procedural Order, ECF No. 31.) Petitioner subsequently filed an amended section 2254 petition. (Amended 2254 Petition at 1.) Respondent seeks dismissal of the amended petition. (Response, ECF No. 41.)

         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 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.”

         A petition may not be granted if the petitioner does not first exhaust available state court remedies. 28 U.S.C. § 2254(b), (c).[2] “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).

         The Supreme Court has held that the failure to pursue available state court relief 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).[3] The Supreme Court also noted that “[t]here is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.” Id. at 752 (citing Pennsylvania v. Finley, 481 U.S. 551 (1987); Murray v. Giarratano, 492 U.S. 1 (1989)). In Coleman, the Court held the petitioner did not have “a constitutional right to counsel on appeal from the state habeas trial court judgment.” Id. at 755.

         In Martinez, the Supreme Court recognized a “narrow exception” to Coleman: “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.” Martinez, 566 U.S. at 9, 16. However, the Supreme Court characterized its decision as an equitable ruling rather than a constitutional ruling. Id. at 16. Furthermore, in Martinez, the Supreme Court held that 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). The First Circuit has held that because Martinez did not involve a new rule of constitutional law, Martinez did not apply retroactively to cases on collateral review. Págan-San Miguel v. United States, 736 F.3d 44, 45 (1st Cir. 2013) (per curiam) (denying the petitioner's application for leave to file a second or successive motion pursuant to 28 U.S.C. § 2255(h)(2)).

         On 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 an unreasonable application of, federal law, as determined by the Supreme Court, pursuant to 28 U.S.C. § 2254(d)(1); or (2) the decision was based on an unreasonable determination of the facts, pursuant to section 2254(d)(2).[4] 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)).

         In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth the federal constitutional standard by which claims of ineffective assistance are evaluated on the merits; Strickland requires a petitioner to demonstrate that “counsel's representation fell below an objective standard of reasonableness, ” and that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 688, 694. A court need not “address both components of the inquiry if the defendant makes an insufficient showing on one . . . .” Id. at 697. The Court presumes “that counsel has ‘rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'” Companonio v. O'Brien, 672 F.3d 101, 110 (1st Cir. 2012) (quoting Strickland, 466 U.S. at 690).

         On the review of a state court decision 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)). “A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Harrington, 562 U.S. at 101. Claims of ineffective assistance of counsel are thus subject to a “‘doubly deferential'” standard of review, in deference to both the state court and defense counsel. Woods v. Etherton, ___ U.S. ___, ___, 136 S.Ct. 1149, 1151 (2016) (per curiam) (quoting Cullen v. Pinholster, 563 U.S. 170, 190 (2011)).

         State court determinations of fact “shall be presumed to be correct, ” and “[t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). A court considers “the totality of the evidence, ” and “a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Strickland, 466 U.S. at 695-96. “[T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.” Id. at 696.

         If a petitioner's claims of ineffective assistance of counsel are based on underlying substantive claims, and the substantive “claims fail on the merits, his related claims that counsel rendered ineffective assistance in failing to press the claims at trial or on appeal must also fail, ” and the Court need not determine whether the petitioner has demonstrated “‘cause and actual prejudice.'” Tse v. United States, 290 F.3d 462, 465 (1st Cir. 2002) (per curiam) (quoting United States v. Frady, 456 U.S. 152, 167 (1982)); see Knight v. Spencer, 447 F.3d 6, 16 (1st Cir. 2006) (holding that the petitioner's counsel “could not have rendered ineffective assistance in failing to object to alleged errors of state evidentiary law that were either non-prejudicial or nonexistent”).

         B. Grounds Asserted and Analysis

         1. Alternate suspect evidence (Ground 1)

         Petitioner alleges a violation of due process and related ineffective assistance of trial counsel regarding alternate suspect evidence. (Amended 2254 Petition at 10 & n.1; Reply, ECF No. 49 at 8-9.) He contends that after a taxi driver testified at trial that he had driven a man and a woman to the defendant's residence and that the passengers had discussed going to Florida (Reese, No. CR-02-73, Trial Tr. at 229, 238, 240), counsel should have offered, and the court should have admitted, the testimony of alleged alternate suspect Chris Brawn and his partner, Megan Cochran, to establish that they had discussed plans to go to Florida at the time of the crime.[5] (Reply at 9.)

         Petitioner challenges the Law Court's determination that the trial court did not err or abuse its discretion when it excluded, as speculative, evidence of Brawn's whereabouts on the weekend the victim disappeared. Reese, 2005 ME 87, ¶ 8, 877 A.2d 1090. Petitioner contends the decision was both an unreasonable application of Chambers v. Mississippi, 410 U.S. 284 (1973), and an unreasonable determination of the facts. (Reply at 9.)

         Petitioner's due process claim is procedurally defaulted because he made no offer of proof after the trial court's ruling to exclude evidence of Brawn's whereabouts on the weekend the victim disappeared. Reese, 2005 ME 87, ¶ 8, 877 A.2d 1090. Furthermore, because the state court did not violate Petitioner's due process rights, the claim fails on the merits. In O'Brien v. Marshall, 453 F.3d 13 (1st Cir. 2006), while acknowledging that in Chambers, the Supreme Court determined that a defendant must be allowed to offer evidence that someone confessed to the crime to three different individuals on three different occasions, the First Circuit described the evidence in Chambers as “very reliable, ” and noted that “federal rights are violated only when state rules or particular results are shocking or indefensible. The key Supreme Court cases overturning the exclusion of exculpatory evidence bear out the view that a kind of ad hoc balancing is at work but the threshold is high.” Id. at 19-20.

         Here, none of Petitioner's section 2254 allegations or supporting materials (ECF No. 49 at 9; ECF No. 49-1 at 4, 11) is sufficient to satisfy the threshold for a due process claim, or otherwise to entitle Petitioner to relief under section 2254(d), based on the state court's ruling on evidence of Brawn's whereabouts. The court's ruling to exclude the evidence as speculative, and its concern that further evidence regarding Brawn risked a trial within a trial on the alternate suspect issue, was neither shocking nor indefensible.[6]See O'Brien, 453 F.3d at 19-20.

         2. Sentencing (Ground 2)

         Petitioner alleges his due process rights were violated at sentencing because the trial testimony of the State's medical examiner did not support the court's sentencing finding that the victim struggled and suffered.[7] (Amended 2254 Petition at 11-12; Reply at 9-10.)

         The sentencing court considered that the victim's wrists had been bound in duct tape:

There is the matter of the duct-tape. I have to say that I have to take that into account. And it is the only evidence that there was a struggle or a moment when Ms. Green remained alive, or that there was alternatively some moment when she was put in the power of the defendant before being hit, [whichever] of those it was. That was, in my view, a factor which increases substantially the nature and seriousness of this crime.

(Sentencing Tr. at 79.)[8] The sentencing court also found: “If duct-tape was necessary, there is - a strong inference can be drawn that she either knew something bad was going to happen to her and therefore suffered or was alive after being hit and therefore suffered.” (Id. at 85.)

         Petitioner raised the issue in the consolidated sentence review and appeal, citing State v. Hewey, 622 A.2d 1151 (Me. 1993). (State v. Reese, No. Sag-04-11, Appellate Brief at 45-48.) The Law Court noted Petitioner's sentencing argument and summarily concluded it lacked merit. Reese, 2005 ME 87 at ¶ 1 n.2. Although Petitioner did not discuss the due process issue explicitly, the Law Court has recognized that an argument under Hewey implicates due process. See State v. Grindle, 2008 ME 38, ¶ 18, 942 A.2d 673 (“Courts have broad discretion in determining what information to consider in sentencing; they are limited only by the due process requirement that such information must be ‘factually reliable and relevant.'”) (citing Hewey, 622 A.2d at 1154).

         The record supports the trial court's findings. In support of his contention that the record lacked evidence of the victim's suffering, Petitioner points to testimony of the State's medical examiner that there was “minimal” or “very light” hemorrhaging beneath the victim's skull. (Reese, No. CR-02-73, Trial Tr. at 1574, 1615.) The evidence at trial, however, does not support a link between the amount of hemorrhaging and the amount of suffering. As the medical examiner cautioned when discussing the significance of a finding of minimal hemorrhaging:

It is a negative finding, and it's dangerous in interpreting negative findings. The person may have survived a period of time after the infliction of the wounds; however, the lack of hemorrhage in those locations may also indicate ...

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