United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2254
C. NIVISON U.S. MAGISTRATE JUDGE
action, Petitioner Keith Tingley 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. 5.)
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.
Background and Procedural History
2014, Petitioner was indicted with one count of aggravated
drug trafficking. (State v. Tingley, Me. Super. Ct.,
Aro. Cty. No. CARSC-CR-2014-00171, Docket Record at 2, 5.)
Petitioner pled guilty to the charge on January 26, 2015.
(Id. at 4.) In February 2015, the Superior Court
sentenced Petitioner to twenty-two years of imprisonment with
all but fourteen years suspended, followed by four years of
probation, to be served concurrently with other unrelated
sentences, a $400 fine, and $4, 057 in restitution.
(Id. at 5.) On March 5, 2015, the Superior Court
granted Petitioner’s motion to extend the time to file
an appeal. (Id. at 7.) Despite the extension of
time, Petitioner did not appeal from his sentence or
November 23, 2015, Petitioner sought state postconviction
relief. (Tingley v. State, Me. Super. Ct., Aro.
Cty., AROCD-CR-2015-00187, Docket Record at 1.) Petitioner
initially argued that: (1) his counsel during the guilty plea
was ineffective because counsel allegedly advised against a
plea deal with a sentence that would have been more favorable
than the sentence Petitioner received after his open plea;
(2) the sentencing court sentenced him based on impermissible
factors; (3) counsel improperly advised him against an
appeal; and (4) counsel had a conflict of interest due to
alleged family ties to the prosecuting attorney. (First State
Postconviction Petition at 3 – 4.) Petitioner amended
his state court petition to assert that: (5) counsel did not
adequately investigate the matter before the plea; (6)
counsel did not present certain mitigating evidence at
sentencing; and (7) appellate counsel was ineffective when
counsel did not file an appeal and did not challenge the
sentence as excessive. (Amended State Postconviction Petition
at 1.) On October 7, 2016, upon agreement of the parties, the
state court granted the petition in part by allowing
Petitioner to appeal from his sentence and dismissed the
remainder of the petition as it was “withdrawn with
prejudice.” (Docket Record at 2; Postconviction Hearing
Transcript at 3 – 5; Order on Postconviction Petition
October 17, 2016, Petitioner filed an application for leave
to appeal his sentence to the Sentencing Review Panel of the
Supreme Judicial Court. (Tingley v. State, Me. L.
Ct., SRP-16-512, Docket Record at 2.) The Sentencing Review
Panel denied Petitioner’s application in December 2016.
on October 18, 2016, shortly after filing the application to
the Sentencing Review Panel, Petitioner filed a pro se motion
to arrest judgment. He argued that his postconviction
attorney had not explained the sentence review process and
that he had been duped into withdrawing his petition with
prejudice. (Tingley v. State, Me. Super. Ct., Aro.
Cty., AROCD-CR-2015-00187, Docket Record at 2; Motion to
Arrest Judgment at 1.) In November 2016, the Superior Court
denied the motion after construing it as a motion to vacate
its earlier order. (Docket Record at 2 – 3; Procedural
Order at 1.) In December 2016, Petitioner filed a motion for
reconsideration, which the Superior Court denied on March 10,
2017. (Docket Record at 3; Motion for Reconsideration at 1;
Order on Motion for Reconsideration at 1.) Petitioner did not
pursue a discretionary appeal to the Maine Supreme Judicial
26, 2017, Petitioner filed a second petition for state
postconviction review, asserting ineffective assistance of
counsel during the previous postconviction proceedings.
(Tingley v. State, Me. Super. Ct., Aro. Cty.,
AROCD-CR-2017-00203, Docket Record at 1; Second State
Postconviction Petition at 3 – 4.) On October 2, 2018,
the Superior Court dismissed the second state petition.
(Docket Record at 1; Second Postconviction Decision at 1
– 2.) Petitioner did not seek a discretionary appeal to
the Maine Supreme Judicial Court.
December 2018, Petitioner filed a section 2254 petition with
this Court, asserting that: (1) his sentence was in excess of
that permitted by state law; (2) trial counsel was
ineffective for advising him to accept an open plea over a
more favorable plea arrangement; (3) sentencing counsel was
ineffective for failing to present mitigating factors; and
(4) postconviction counsel was ineffective for allowing his
first petition to be dismissed. (Petition at 5 – 8.)
The State argued that the petition was not filed timely and
that Petitioner had failed to exhaust his state remedies
because he did not appeal from either of the state court
petitions to the Maine Supreme Judicial Court. (Answer at 4
– 5.) Petitioner responded that he should be allowed to
appeal to the Maine Supreme Judicial Court. (Opposition to
Motion to Dismiss at 2, ECF No. 9.) This Court stayed the
federal habeas proceeding on April 9, 2019 and permitted
Petitioner to seek a discretionary appeal with the Maine
Supreme Judicial Court. (Order, ECF No. 11.) On May 29, 2019,
the Supreme Judicial Court dismissed as untimely
Petitioner’s application for a discretionary appeal.
(Tingley v. State, Me. L. Ct., ARO-19-195, Order
Dismissing Appeal at 2; ECF Nos. 13-1, 16.)
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 ...