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Tingley v. Liberty

United States District Court, D. Maine

September 26, 2019

KEITH TINGLEY, 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 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.)

         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.

         Factual Background and Procedural History

         In July 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 conviction.

         On 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 at 1.)

         On 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. (Id.)

         Meanwhile, 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 Court.

         On June 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.

         In 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.)

         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 ...

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