the court are two motions. The first is Respondent Maine
Department of Corrections ("MDOC's") motion to
dismiss Petitioner George Fernald's 80C petition for
review. The second is Petitioner Fernald's motion to
modify the record.
27, 1966, Fernald was convicted of Murder and sentenced to
life imprisonment. (Pet. ¶ 3); State v. Fernald,
Me., 248 A.2d 754 (1968). On March 6, 1974,
Fernald's sentence was commuted from life to "eleven
years, eleven months to life" in order to allow Fernald
to become eligible for Parol at an earlier date. Fernald
v. Me. State Parole Bd., 447 A.2d 1236, 1237 (Me. 1982).
On November 19, 2007, Fernald was released on parol from the
Maine State prison. (Pet. ¶ 4.)
March 13, 2019, Fernald mailed a written inquiry to the
Warden of the Maine State Prison requesting information
regarding Fernald's sentence calculation and good conduct
deductions. (Pet. ¶ 11.) Fernald did not receive any
response to this inquiry. (Pet. ¶ 11.) On March 27,
2019, Fernald mailed a second inquiry to the Warden. (Pet.
¶ 12.) Likewise, Fernald did not receive a response.
(Pet. ¶ 12.) On April 2, 2019, Fernald mailed a
"formal petition" to the Warden seeking a
"full audit and accounting of [Fernald's] good
conduct deductions." (Pet. ¶ 13.) This petition
also requested a "due process disclosure hearing."
(Pet. ¶ 13.)
April 6, 2019, Fernald received a letter from Toni Grant, a
Department of Corrections Classification Officer. (Pet.
¶ 14 & Ex. D.) This letter informed Fernald that
"good time" had not been calculated on his maximum
life sentence while he was out on parol. (Pet. Ex. D.) The
letter also informed Fernald that the end date of his
sentence is unknown because the maximum term of his sentence
is life. (Pet. Ex. D.)
April 8, 2019, Fernald filed a prisoner grievance with the
Maine State Prison which reiterated the requests Fernald made
in his "formal petition." (Pet. Ex. E.)
Fernald's grievance was dismissed by a Grievance Review
Officer on April 16, 2019. On June 4, 2019, Fernald filed
this 80C petition for review.
has moved to dismiss the petition on the grounds that it was
not filed within the period of time allotted for taking an
appeal of final agency action. Pursuant to the Administrative
Procedures Act, a petition for review "shall be filed
within 30 days after receipt of notice if taken by a party to
the proceeding of which review is sought." 5 M.R.S.
§ 11002(3). This time limitation is jurisdictional.
Martin v. Dep't of Corrections., 2018 ME 103,
¶ 12, 190 A.3d 237. If a petition is untimely, the court
may dismiss it. Mutty v. Dep`t of Corr., 2017 ME 7,
¶ 12, 153 A.3d 775.
support of its motion, MDOC points to the record which
contains a copy of the certified mail receipt showing that
the notice of dismissal was mailed to Fernald on April 18,
2019. Additionally, the record also contains the return
receipt which accompanied the mailing and which is signed by
Fernald. Although this receipt shows that Fernald received a
copy of the notice of dismissal, the receipt is not dated.
The record, however, includes the post office tracking
history for the return receipt. The tracking history shows
the receipt was returned to the Post Office on April 20, 2019
and returned to the Maine State Prison on April 22, 2019.
record documents show that Fernald received a copy of the
notice of dismissal no later than April 22, 2019.
Additionally, Fernald admits in his petition that he received
a letter from Toni Grant on April 6, 2019 which stated that
he was not accruing good time and that there was no known end
date to his sentence because his maximum term is life.
Because the petition was filed on June 4, 2019-more than 30
days after Fernald received both the notice of dismissal and
the letter from Toni Grant-the court concludes that it lacks
jurisdiction to hear Fernald's appeal. Consequently,
Fernald's 80C petition for review must be dismissed.
Mutty, 2017 ME 7, ¶ 12, 153 A.3d 775. Because
the court is dismissing Fernald's petition, Fernald's
motion to modify the record is moot and the court need not
George Fernald's 80C Petition for Review is
clerk is directed to incorporate this order into the docket