United States District Court, D. Maine
ORDER ON MOTION TO AMEND AND RECOMMENDED DECISION ON
28 U.S.C. § 2254 PETITION
C. Nivison U.S. Magistrate Judge.
action, Petitioner Steven Clark, pursuant to 28 U.S.C. §
2254, seeks relief from a state court conviction and
sentence. (Petition, ECF No. 1.) Petitioner asserts that his
trial counsel provided ineffective assistance by failing to
introduce certain evidence and call certain witnesses, among
other claims. (Id.; Addendum, ECF No. 11.) The State
argues that the state court correctly determined that counsel
was not ineffective because in connection with the challenged
conduct, he exercised reasonable strategic judgment and, in
any event, Petitioner was not prejudiced by counsel's
performance. (Answer, ECF No. 16.) The State asks the Court
to dismiss the petition. After he filed the petition and
after the State requested dismissal, Petitioner moved to
amend the petition. (Motion, ECF No. 20.)
Petitioner's motion to amend the addendum to the
petition, and 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
Background and Procedural History
2007, following a jury trial, Petitioner was convicted of one
count of murder. (State v. Clark, Me. Super. Ct.,
Cum. Cty., CR-06-533, Docket Record at 3 - 4, 6.) Petitioner
was sentenced to forty-three years of imprisonment.
(Id. at 6.) The evidence showed that in February
2006, Petitioner and Robert Wagner spent a night drinking
with another friend at a club before returning to
Petitioner's house, where a conflict arose between
Petitioner and Wagner. State v. Clark, 2008 ME 136,
¶ 3, 954 A.2d 1066, 1068. After the friend left,
Petitioner shot Wagner twice and then sought to hide the
evidence of the killing, and he enlisted his father and
brother to help dispose of the body. Id.
¶¶ 4 - 6. Petitioner testified at trial that he
shot Wagner in self-defense after Wagner held a knife to
Petitioner's head; Petitioner claimed that he concealed
the evidence because he feared the police as a result of
prior interactions, including an occasion where Petitioner
was maced and arrested. Id. ¶¶ 1, 5.
sought review of his sentence and appealed from his
conviction. In February 2008, the Sentence Review Panel of
the Maine Supreme Judicial Court denied Petitioner leave to
appeal his sentence. (State v. Clark, Me. Sent. Rev.
Panel, SRP-07-381, Docket Record.) In August 2008, the Maine
Supreme Judicial Court upheld the conviction. Clark,
2008 ME 136, ¶ 1.
February 2010, Petitioner filed a state petition for
postconviction review. (Clark v. State, Me. Super.
Ct., Cum. Cty., CR-10-1339, Docket Record at 1.) After a
series of evidentiary hearings between September 2014 and
August 2016, the state court denied the petition in October
2018. (Id. at 7 - 14; Postconviction Decision.) In
February 2019, the Maine Supreme Judicial Court denied
Petitioner's application for a certificate of probable
cause to appeal the postconviction decision. (Clark v.
State, Me. Law. Ct., CUM-18-454, Docket Record at 3.)
Motion to Amend
motion to amend is governed by Federal Rule of Civil
Procedure 15. See 28 U.S.C. § 2242 (habeas
petitions “may be amended or supplemented as provided
in the rules of procedure applicable to civil
actions”); Rules Governing Section 2254 Proceedings,
Rule 12 (providing that the Federal Rules of Civil Procedure
apply, to the extent they are not inconsistent with statutory
provisions or the Rules Governing Section 2254 Proceedings).
15(a)(1) permits a litigant to amend a pleading “once
as a matter of course, ” subject to certain time
constraints. Fed.R.Civ.P. 15(a)(1). However, when a party
seeks to amend a complaint more than 21 days after the filing
of a responsive pleading, the other party's consent or
leave of court is required in order to amend the complaint.
Fed.R.Civ.P. 15(a)(2). In such a case, the court is to grant
leave to amend “freely” when “justice so
requires.” Id.; see also Foman v.
Davis, 371 U.S. 178, 182 (1962) (“In the absence
of any apparent or declared reason-such as undue delay, bad
faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment, etc.-the
leave sought should, as the rules require, be ‘freely
the original petition contained only one ground for relief,
Petitioner referred to an “addendum to petition under
separate cover” because the claims were too extensive
to list in the standard form. (Petition at 7.) Because the
Court did not initially receive an addendum, on March 14,
2019, the Court instructed Petitioner to file his
supplemental claims by April 5, 2019. (Order, ECF Nos. 5, 7.)
On April 10, 2019, Petitioner filed a motion to extend the
time to supplement the petition, which motion Petitioner
dated April 4. (ECF No. 8.) Petitioner asserted that his
access to his legal materials and a typewriter were
restricted due to a quarantine at the Maine State Prison. On
April 11, 2019, the Court extended the deadline to April 26.
(Id.; Order, ECF No. 9.)
2, 2019, Petitioner filed another motion to extend the
deadline, which motion Petitioner dated April 25. (ECF No.
10.) Petitioner explained that he might miss the deadline for
supplementing the Petition because he needed to get
photocopies and could not do so until April 26.
(Id.) Also on May 2, 2019, Petitioner filed a
forty-six-page Addendum, dated April 26, with nine additional
grounds for relief and numerous subparts. (Addendum, ECF No.
11.) In addition, Petitioner attached a copy of another
forty-one-page addendum that he had previously filed with the
state postconviction court. (State Postconviction Addendum,
ECF No. 11-1.) On May 6, 2019, I granted Petitioner's
second motion to extend the deadline and accepted
Petitioner's filings. (Order, ECF No. 12.) On the same
day, I ordered the State to respond to Petitioner's
filings. (Order to Answer, ECF No. 13.)
16, 2019, Petitioner filed a motion, dated April 29, seeking
leave to file a “Memorandum of Law” and asserting
the same photocopy-related reason for delay. (Letter/Motion,
ECF No. 14.) Interpreting this request for an additional
filing as referring to the same Addendum that had already
been accepted, the Court denied that motion as moot on May
17, 2019. (Order, ECF No. 15.) Apparently, however, within
his addendum, Petitioner referred to a “Memorandum of
Law” that he intended to be another document in support
of his petition. (Addendum at 14, 38.)
State filed its response to the Petition and the Addendum on
June 20, 2019. (Answer, ECF No. 16.) On June 24, 2019,
Petitioner filed a motion to clarify the status of his
filings. (ECF No. 18.) In that motion, Petitioner expressed
concern that the Court did not docket or did not receive his
memorandum of law. (Id.) Petitioner did not include
a copy of a memorandum, instead offering to send it within
two days of notification from the Court. (Id.) On
June 25, 2019, the Court clarified that the petition and the
supplement had been docketed. (Order, ECF No. 19.)
5, 2019, Petitioner filed a motion to amend the Addendum,
which motion Petitioner dated June 28. (ECF No. 20.)
Petitioner asserted that he sent his Memorandum of Law to the
Court and the State on April 29, 2019, three days after
sending his Supplement. (Id. at 1.) Neither the
Court nor the State received a memorandum. (See
Response to Motion to Amend, ECF No. 21.) After seeking and
obtaining an extension of time to file his reply to the
State's answer, Petitioner filed a reply on August 6,
2019. (ECF Nos. 22 - 24.) Finally, on August 12 and August
26, 2019, Petitioner filed a two-part, 116-page Memorandum of
Law in connection with his prior motion to amend his
Addendum. (Memorandum of Law, ECF Nos. 25, 27.) Petitioner
apparently sent the documents on August 1, but maintains he
originally sent them on April 29.
filings generate some legitimate questions about
Petitioner's efforts to comply with the filing deadlines.
The Addendum resembles a typical memorandum of law, with
detailed factual descriptions and legal arguments, rather
than the short plain statements found in a form petition
which is ordinarily accompanied by a separate memorandum. The
circumstances-including a series of requests for extensions
of time, the repeated use of the same justification for
delay, and the failure to include the Memorandum for several
months-raise the possibility that Petitioner attempted to
circumvent or effectively extend the Court's filings
deadlines without a legitimate basis.
challenges presented by the prison mail system could
conceivably result in an oversight or mistake in the filing
of the Memorandum of Law. In addition, Petitioner's pro
se status might explain the confusion between terms like
“addendum, ” “supplement, ” and a
“memorandum” when he amended the petition.
Because Petitioner's Memorandum of Law largely presents
case authority and reiterates factual accounts included in
the state court record, I grant Petitioner's motion to
amend and consider his Memorandum of Law in assessing the
Legal Standards for § 2254 Petition
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.”
circumstances not relevant to Petitioner's case, a
petitioner is required to exhaust available state court
remedies before he seeks federal habeas review. 28 U.S.C.
§ 2254(b), (c). “Before seeking a federal writ of
habeas corpus, a state prisoner must exhaust available state
remedies, 28 U.S.C. § 2254(b)(1), thereby giving the
State the ‘opportunity to pass upon and correct'
alleged violations of its prisoners' federal
rights.” Baldwin v. Reese, 541 U.S. 27, 29
(2004) (quoting Duncan v. Henry, 513 U.S. 364, 365
(1995) (per curiam)) (quotation marks omitted). In
Baldwin, the Court noted that “[t]o provide
the State with the necessary ‘opportunity,' the
prisoner must ‘fairly present' his claim in each
appropriate state court (including a state supreme court with
powers of discretionary review), thereby alerting that court
to the federal nature of the claim.” Id.
(quoting Duncan, 513 U.S. at 365-66).
exhaust a claim fully in state court in Maine, a petitioner
must request discretionary review by the Law Court.
See 15 M.R.S. § 2131. The Supreme Court has
held that a procedural default bars federal review absent a
demonstration of cause for the default and prejudice to the
In all cases in which a state prisoner has defaulted his
federal claims in state court pursuant to an independent and
adequate state procedural rule, federal habeas review of the
claims is barred unless the prisoner can demonstrate cause
for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750
Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme
Court recognized a “narrow exception” to its
holding in Coleman, based on equity, not
constitutional law: “Inadequate assistance of counsel
at initial-review collateral proceedings may establish cause
for a prisoner's procedural default of a claim of
ineffective assistance at trial.” 566 U.S. at 9, 16.
However, when the procedural default relates to
post-conviction counsel's actions at the
discretionary-review stage rather than at the initial-review
stage of the collateral proceedings, habeas relief is not
The holding in this case does not concern attorney errors in
other kinds of proceedings, including appeals from
initial-review collateral proceedings, second or successive
collateral proceedings, and petitions for discretionary
review in a State's appellate courts. It does not extend
to attorney errors in any proceeding beyond the first
occasion the State allows a prisoner to raise a claim of
ineffective assistance at trial . . . .
Martinez, 566 U.S. at 16 (citations omitted).
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 ...