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Wilcox v. Liberty

United States District Court, D. Maine

May 8, 2018

TIMOTHY T. WILCOX, Petitioner,
v.
RANDALL LIBERTY, Respondent

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

          John C. Nivison U.S. Magistrate Judge

         In this action, Petitioner Timothy T. Wilcox seeks relief pursuant to 28 U.S.C. § 2254. (Petition, ECF No. 1.) Following a jury trial in March 1996, Petitioner was convicted of the following crimes involving three victims in three separate incidents: two counts of kidnapping, 17-A M.R.S. § 301 (Class A); eight counts of gross sexual assault, 17-A M.R.S. § 253 (Class A); two counts of robbery, 17-A M.R.S. § 651 (Class A); and one count of unlawful sexual contact, 17-A M.R.S. § 255 (Class C). (State v. Wilcox, No. CR-95-881 (Me. Super. Ct., Cumberland Cty., Oct. 18, 1996), Docket Record at 3, Judgment and Commitment at 1.)[1] The court sentenced Petitioner to consecutive and concurrent terms of imprisonment totaling 49 years. (Docket Record at 3; Judgment and Commitment at 1.)

         Petitioner's section 2254 petition follows the denial of a second state court petition that was “triggered by a May 2015 letter from the Department of Justice stating that a witness from the FBI Laboratory had presented hair comparison testimony ‘containing erroneous statements' at the trial.” (Wilcox v. State, No. CUMCD-CR-2015-05036 (Unified Criminal Docket, Cumberland Cty., Apr. 7, 2017), Order.)[2] The court noted that Petitioner's “[i]dentity was the major issue at trial . . . .” (Id. at 5.) The court concluded that other evidence that established Petitioner's identity as the perpetrator was “sufficiently compelling that [Petitioner] has not met his burden of proving that he should be granted post-conviction relief” on the basis of the new evidence concerning the hair comparison testimony. (Id. at 5, 13.) The Maine Law Court denied discretionary relief under 15 M.R.S. § 2131(1), M. R. App. P. 19. (Wilcox v. State, No. Cum-17-160 (Me. June 7, 2017).)

         Petitioner essentially contends in his section 2254 petition that the state court decision was either contrary to, or involved an unreasonable application of, federal law, pursuant to 28 U.S.C. § 2254(d)(1).[3] The State urges the Court to deny the section 2254 petition. (Response, ECF No. 5 at 6.)

         After a review of the section 2254 petition, the State's response to the petition, and the record, I recommend the Court deny Petitioner's request for relief, and dismiss the petition.

         I. Factual Background and Procedural History

         Petitioner did not appeal from the conviction. The Sentence Review Panel of the Law Court denied Petitioner's request for review of the sentence. (State v. Wilcox, No. SRP-96-103, Docket Record.)

         The Superior Court denied Petitioner's first state court petition following an evidentiary hearing. Wilcox v. State, No. PORSC-CR-1997-00590 (Me. Super. Ct., Cumberland Cty., June 11, 2004), Docket Record at 2.) The State represents that Petitioner did not file a request for discretionary review by the Law Court. (Response at 3.) The State also asserts that the section 2254 petition “does not raise any grounds pertaining to the allegations raised in the first state petition for post-conviction review . . . .” (Response at 3 n.1.)

         Petitioner's second state court petition, filed in 2015, was based on the same underlying facts he asserts in his section 2254 petition, namely that the trial testimony of a Federal Bureau of Investigation special agent “exceeded the limits of science by overstating the conclusions that may appropriately be drawn from a positive association between evidentiary hair and a known hair sample.” (May 5, 2015, Letter, ECF No. 1-3 at 2; Wilcox v. State, No. CUMCD-CR-2015-05036 (Cumberland Cty.), Attachment to Petition for Post-conviction Review.)

         In its May 5, 2015, letter and accompanying documents, the Department of Justice identified three possible ways in which the testimony or report presented exceeded the limits of science.[4] (Letter, ECF No. 1-3 at 3.) One of the documents was a March 16, 2015, letter from the FBI to the Innocence Project and the Microscopic Hair Comparison Analysis Review Team. (Id. at 5.) The letter stated in relevant part:

The examiner assigned to the positive association a statistical weight or probability or provided a likelihood that the questioned hair originated from a particular source, or an opinion as to the likelihood or rareness of the positive association that could lead the jury to believe that valid statistical weight can be assigned to a microscopic hair association. This type of testimony exceeds the limits of the science.

(Id.)[5]

         Petitioner, represented by appointed counsel, filed an amended state court petition in May 2016. (Docket Record at 1-2, Amended Petition.) In the amended petition, Petitioner argued he had a right to a new trial as to the convictions related to one or possibly two of the victims, based on the flawed FBI hair comparison analysis (Ground 1); he also claimed ineffective assistance of trial counsel based on counsel's failure to move to sever the charges regarding one of the victims (Ground 2); and he alleged ineffective assistance of post-conviction counsel based on counsel's failure to argue in the first post-conviction petition an ineffective assistance claim for failure to sever (Ground 3). (Amended Petition at 10, 15, 17-18.) Finally, Petitioner challenged the sufficiency of the evidence for the convictions regarding one of the victims. (Id. at 10.)

         Petitioner acknowledged that the claim regarding trial counsel's performance could have been raised in the first post-conviction review, but he argued that “in light of the new evidence in this case, that claim must be evaluated differently” than it would have been in the first post-conviction review. (Id. at 3.) The State did not challenge the timeliness of Ground 1, but it argued the ineffective assistance claim against trial counsel was not filed timely, and that the ineffective assistance claim against post-conviction counsel was not cognizable and was not filed timely. (Order at 1-2.) The court dismissed the ineffective assistance claims (Grounds 2 and 3) in August 2016, and it held an evidentiary hearing on Ground 1 in February 2017. (Docket Record at 3-4, Order at 2.) Following the hearing, the parties submitted written argument. (Docket Record at 4; Petitioner's Written Argument; Respondent's Post-Hearing Brief.)

         In April 2017, the court denied Ground 1 of the amended petition. (Docket Record at 4, Order at 12-13.) The court noted that the sole issue on post-conviction review was whether Petitioner had demonstrated prejudice, i.e., “whether [Petitioner] has shown a reasonable probability that, absent the testimony of FBI Agent Joseph Dizinso that has now been called into question, the result of the proceeding would have been different.” (Order at 2 (citing, inter alia, Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).)

         After reviewing the evidence of identity at trial, the court noted the evidence of Petitioner's identity in the crimes against one of the victims was “not as strong” as the evidence that linked Petitioner to the other victims. The evidence the court concluded was not as strong consisted of (1) a photo array in which the victim identified Petitioner and another person as the possible assailants; (2) the victim's in-court testimony that “the assailant ‘kind of looked like the guy sitting in the courtroom right now, '” but with some changes in his facial hair; and (3) the hair comparison testimony of Dizinso. (Id. at 9-10.) The court concluded, however, that “the evidence offered by the State regarding the three victims established a similar modus operandi leading to a strong inference that all the assaults were committed by the same person.” (Id. at 10.)

Most strikingly, during the same two-month period, all three victims were walking at night along one of the two main parallel streets one or two blocks apart . . . . All three were offered a ride by a person in a car with handicapped plates and handicapped controls on the steering wheel. All three saw that the driver had a brace on his right leg. All three were driven to a remote location and subjected to multiple assaults.

(Id. at 10-11) (footnote omitted).

         The court noted evidence that “all three women had a gun held to their heads and were first compelled to perform oral sex on their assailant.” (Id. at 11.) There were other common details as well, including that two of the victims, "testified that the assailant had difficulty maintaining an erection, ” and that “[a]ll three victims were eventually left by the side of the road with little or no clothing.” (Id.) The court observed that Petitioner “was again cruising ...


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