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Franco v. State

United States District Court, D. Maine

August 7, 2019

ANDREW FRANCO, Petitioner,
v.
STATE OF MAINE, Respondent

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

          John C. Nivison U.S. Magistrate Judge.

         In this action, Petitioner Andrew Franco seeks relief pursuant to 28 U.S.C. § 2254. (Petition, ECF No. 1.) The State contends the petition was not filed timely in accordance with 28 U.S.C. § 2244(d), and thus asks the Court to dismiss the petition. (Response, ECF No. 7.)

         After a review of the petition, the State's request for dismissal, and the record, I recommend the Court grant the State's request and dismiss the petition.

         Factual Background and Procedural History

         In April 2015, Petitioner was indicted on two counts of robbery with a dangerous weapon, 17-A M.R.S. § 651(1)(E), and one count of criminal threatening with a dangerous weapon, 17-A M.R.S. § 209(1). (State v. Franco, No. AUBSC-CR-2015-00106 (Me Super. Ct., Androscoggin Cty.); State Court Record (“Record”), ECF No. 7-1 at 2, 5 - 8.)

         On September 14, 2015, Petitioner pled guilty to the three charges. (Record at 5 - 6.) On the same day, the state trial court sentenced Petitioner on the robbery counts to fifteen-year terms of imprisonment, with all but six years suspended, followed by four years of probation and $343 of restitution, and sentenced Petitioner on the criminal threatening count to a one-year concurrent term of imprisonment. (Id. at 5 - 8). Petitioner did not appeal from the sentence.

         On June 30, 2016, Petitioner filed a state petition for post-conviction review. (Franco v. Maine, ANDCD-CR-2016-02209 (Me Super. Ct., Androscoggin Cty.); Record at 10.) After an evidentiary hearing on October 13, 2017, the state post-conviction court denied the petition on November 6, 2017. (Record at 11 - 12.)

         On November 13, 2017, Petitioner filed a notice of discretionary appeal to the Maine Law Court from the order denying the petition. (Franco v. Maine, No. And-17-499 (Me. Law Ct.); Record at 12, 15.) On March 14, 2018, the Maine Law Court denied Petitioner's request for a certificate of probable cause to proceed with the appeal. (Record at 15.)

         Discussion

         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 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.” Title 28 U.S.C. § 2244(d), which governs the time within which a petitioner must assert a claim under section 2254, provides:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from such filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable ...

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