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Bellavance v. Liberty

United States District Court, D. Maine

January 28, 2019

RAYMOND BELLAVANCE, JR., 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 Raymond Bellavance, Jr., seeks relief pursuant to 28 U.S.C. § 2254. (Petition, ECF No. 1.) Petitioner contests the Maine Law Court's decision to deny discretionary review following the post-conviction court's denial of Petitioner's claim that the trial court violated his Sixth Amendment right to counsel in connection with the testimony of a potential defense witness, whom the State called to testify at trial. In addition, Petitioner asserts claims based on the state court's denial of his post-conviction claims under Strickland v. Washington, 466 U.S. 668 (1984), for ineffective assistance of trial and appellate counsel. (Petition at 7-8.)[1]

         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.

         I. Factual Background and Procedural History

         Following a jury trial in December 2011, Petitioner was convicted of one count of arson (Class A), 17-A M.R.S. § 802(1)(A) or (1)(B)(2), based on an incident that occurred in June 2009. State v. Bellavance, 2013 ME 42, ¶ 1, 18, 65 A.3d 1235. (State v. Bellavance, No. AUGSC-CR-2010-00230, Judgments and Commitments.)[2] Petitioner appealed from the conviction, and he requested leave to appeal from the sentence. Bellavance, 2013 ME 42, ¶ 18 & n.2. The Sentence Review Panel denied Petitioner's application for leave to appeal from the sentence. Id. ¶ 18 n.2.

         In his appeal from the conviction, Petitioner argued “that the court effectively deprived him of his right to counsel when it permitted the testimony of an anticipated defense witness who decided, mid-trial, to testify for the prosecution in exchange for a promise of immunity.” Id. ¶ 1. The Law Court determined that the prosecution did not violate Rule 16 of the Maine Rules of Criminal Procedure in the efforts to obtain the testimony; that “the court provided [Petitioner] with adequate opportunity to prepare for [the] changed testimony;” and that Petitioner did not “establish[] that he suffered sufficient prejudice to show that the court abused its discretion by not permitting him additional time to prepare for [the] testimony.” Id. ¶¶ 26-28. The Law Court concluded Petitioner's “Sixth Amendment rights were not violated.”[3] Id. ¶ 29. Petitioner did not file a petition for a writ of certiorari with the United States Supreme Court. (Petition at 3; Response, ECF No. 5 at 2.)

         In June 2013, alleging claims of prosecutorial misconduct and ineffective assistance at trial and on appeal, Petitioner filed a petition in state court for post-conviction review. (Bellavance v. State of Maine, No. AUGSC-CR-2013-00523, Docket Record at 1, State Court Petition.) Appointed counsel filed three amended petitions; in late 2014, counsel was permitted to withdraw, new counsel was appointed, and Petitioner filed a fourth amended petition pro se. (Docket Record at 3.)

         The post-conviction court held an evidentiary hearing in July 2016; following the hearing, the parties filed written memoranda, and in January 2017, the court denied the petition. (Bellavance, No. AUGSC-CR-2013-00523, Docket Record at 6; Post-conviction Tr. at 1; Decision (Jan. 30, 2017).)

         In January 2018, the Law Court denied Petitioner's request for discretionary review, concluding: “After review of the record and [Petitioner's] memorandum, the Court has determined that no further hearing or other action is necessary to a fair disposition. It is therefore ORDERED that the request for a certificate of probable cause to proceed with the appeal is hereby DENIED.” (Bellavance v. State, No. Ken-17-74, Order Denying Certificate of Probable Cause (Me. Jan. 18, 2018).)

         Petitioner requests relief from the Law Court's decision on appeal and from its denial of a certificate of probable cause. Petitioner's Strickland claims are based on the issues raised in his memorandum in support of a certificate of probable cause. (Petition at 7-8.)

         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.”

         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]

         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, 569 U.S. 505, 508-09 (2013) (per curiam) (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).

         When an external constraint, such as a restriction on a continuance, affects counsel's ability to provide effective assistance, the relevant Sixth Amendment standard, for purposes of section 2254(d), is set forth in Morris v. Slappy, 461 U.S. 1 (1983):

Not every restriction on counsel's time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant's Sixth Amendment right to counsel. Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons. Consequently, broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary “insistence upon expeditiousness in the face of a justifiable request for delay” violates the right to the assistance of counsel. Ungar v. Sarafite, [376 U.S. 575, 589] (1964).

461 U.S. at 11-12 (citation omitted); Bellavance, 2013 ME 42, ¶ 22 n.5 (referring to “extrinsic interference with the right to counsel”).

         In Strickland, the Supreme Court set forth the relevant Sixth Amendment standard by which claims of ineffective assistance based on counsel's errors 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).

         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.

         B. Grounds Asserted and Analysis

         1. Claim of extrinsic interference with right to counsel

         In his section 2254 petition, Petitioner raises the Sixth Amendment issue addressed on direct appeal in Bellavance, 2013 ME 42, 65 A.3d 1235. (Petition at 5.) The claim is a consequence of the mid-trial decision of witness Thomas Mulkern to testify against Petitioner.

         In an interview conducted by the State Fire Marshal's Office investigator in March 2010, Petitioner told investigators he was with Mulkern on the night of the fire. “[Petitioner] denied any involvement and maintained that on the night of the fire, he had spent time with Thomas Mulkern and Mulkern's girlfriend, gone to a local bar, visited an acquaintance's house, and slept at his daughter's house.” Bellavance, 2013 ME 42 at ¶ 2. The investigator's summary of an April 2010 interview of Mulkern stated that Mulkern “admitted to spending time with [Petitioner] on the night of the fire but denied [the investigator's] accusations that Mulkern had assisted [Petitioner] in setting the fire, despite [the investigator's] advice that Mulkern should ‘cut the best deal he possibly could.'” Id. ¶ 5. The Law Court summarized the circumstances regarding Mulkern's trial testimony as follows:

The jury trial began on December 14. On the evening of December 20, before the prosecution had rested its case, Mulkern approached the prosecution and offered to testify against Bellavance in exchange for immunity from prosecution. Before trial on the morning of December 21, the prosecution disclosed to Bellavance and the court that it was prepared to grant immunity to Mulkern and that it expected him to testify that he had assisted Bellavance in carrying out the arson.
After the prosecution disclosed Mulkern's anticipated testimony, the court asked why the prosecution had not granted Mulkern immunity before December 20, given that Mulkern's statement was “completely consistent” with the prosecution's theory of the case. The prosecution responded that it had previously told Mulkern that it would not consider granting him immunity unless he told the truth, and that it did not consider Mulkern's previous denial of participation in the arson to be truthful.
The transcript of the proceedings on the morning of December 21 reveals that Bellavance's attorney had previously interviewed Mulkern, who made statements that corroborated parts of Bellavance's March 2010 statement to [the investigator]. On December 9, 2011, however, Mulkern disclosed to Bellavance, through counsel, that Mulkern might be unwilling to testify for the defense and that his statement might in fact support the prosecution. Then on December 12, Mulkern refused to speak with Bellavance's attorney. It was not until December 20 that the prosecution learned of Mulkern's decision to testify against Bellavance.
Following the December 21 inquiry into the circumstances of the immunity agreement, the court ordered that Bellavance have the opportunity to question Mulkern in the presence of Mulkern's attorney. If Mulkern refused to submit to examination by Bellavance, the court would not permit Mulkern to testify. To allow time for this examination, the court postponed further trial proceedings until December 23.

Id. ¶¶ 9-12.

         In accordance with the applicable standard set forth in Morris, a Sixth Amendment violation occurs only if the trial court responds to a reasonable request for a continuance with an unreasoned and arbitrary denial. See Morris, 461 U.S. at 11-12. Here, the Law Court determined that the State did not violate the governing procedural rule, Maine Rule of Criminal Procedure 16, as the State provided Petitioner's counsel with an audio recording of Mulkern's proffer; and that Petitioner and the trial court “carefully questioned the prosecution to ascertain why the agreement occurred at the eleventh hour, ” and “[t]his inquiry revealed no suggestion that the prosecution improperly withheld information regarding Mulkern's change in testimony.” Bellavance, 2013 ME 42 at 26-29. The Law Court concluded the prosecution had no duty to disclose prior, unaccepted offers of immunity. Id. at ¶ 26.

         Concerning Petitioner's opportunity to prepare for Mulkern's changed testimony, the Law Court noted the trial court suspended the trial for one day, “effectively providing [Petitioner] with forty-eight hours' notice of Mulkern's immunized testimony;” Petitioner was “on notice, as of at least December 9, that Mulkern's testimony might in fact support the prosecution's case;” and “the court facilitated [Petitioner's] preparation by ordering that [Petitioner] have the opportunity to question Mulkern before he testified, conditioning Mulkern's testimony on his availability to [Petitioner], and requiring that Mulkern be available to [Petitioner] for recall as a witness.” Id. ¶ 27. The Law Court also concluded Petitioner had not “established that he suffered sufficient prejudice to show that the court abused its discretion by not permitting him additional time to prepare for Mulkern's testimony.” Id. ¶ 28.

         A review of the record reveals that Petitioner has failed to meet his burden, pursuant to 28 U.S.C. § 2254(e)(1), to rebut the presumption of correctness of the facts set forth in the Law Court's decision on appeal. Petitioner has not demonstrated the Law Court's decision was based on “an unreasonable determination of the facts, ” under section 2254(d)(2). To the contrary, the Law Court's reasoning is sound and is supported by the record. As the Law Court observed, the trial court afforded Petitioner sufficient time and opportunity to prepare for Mulkern's testimony. Because the trial court's decision was not unreasoned or ...


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