JOHN C. NIVISON, Magistrate Judge.
In this action, Petitioner John Amos Lane seeks relief, pursuant to 28 U.S.C. § 2254, from his 1985 Maine state court conviction for murder.
Petitioner asserts that he is entitled to relief due to ineffective assistance of counsel. In particular, Petitioner contends that trial and sentencing counsel (1) failed to move for a finding that Petitioner was incompetent to stand trial; (2) failed adequately to investigate and develop facts regarding Petitioner's experience with exorcism and rage; (3) failed to obtain and use Petitioner's mental health records and records of a traumatic brain injury; (4) failed to impeach the testimony of a state psychiatrist who opined that Petitioner was not psychotic when he committed the crime, but who, after trial, treated Petitioner and prescribed antipsychotic drugs; (5) failed to move for the preparation of a presentence investigation report; and (6) failed to object to the sentence. Petitioner also contends that his appellate counsel failed to file a petition for post-conviction review or failed to advise him about the availability of post-conviction review.
Petitioner failed to pursue timely a state court post-conviction review, and in response to the State's motion to dismiss the section 2254 petition as a late filing, Petitioner alleged that his failure was due to mental illness. Upon review of the motion to dismiss, the Court concluded that Petitioner had established a prima facie case for equitable tolling of the limitation period, and the Court ordered the State to address the merits. Pursuant to 28 U.S.C. § 2254(b)(2), which permits a habeas petition to be "denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State," this recommended decision addresses the merits of Petitioner's various allegations under the standard, set forth in Strickland v. Washington, 466 U.S. 668 (1984), for claims of ineffective assistance of counsel.
After a review of the petition and the State's request for dismissal on the merits, I recommend the Court grant the State's request, and dismiss the petition.
Petitioner was convicted of murder following a two-week bench trial in 1985.
On November 22, 1985, the state court sentenced Petitioner to life in prison. (Id. at 39.) By docket entry dated December 17, 1985, the court entered both counsel's motion to withdraw and the court's grant of the motion. (Id. at 40.) The order provided that new counsel was appointed "to represent [Petitioner] with regard to his appeal and any other post-trial matters which may arise." (Id.)
Petitioner appealed from the conviction and the sentence. (Id. at 41, 51.) The appeal from the sentence was dismissed for lack of jurisdiction. (Id. at 44.) According to the Law Court docket sheet, Petitioner had three successive attorneys over the course of the appeal from the conviction. (Id. at 52.) The Law Court affirmed the conviction. Lane, 532 A.2d at 144. (Record at 48.) Addressing Petitioner's contention that the evidence supported his argument that he lacked criminal responsibility, the Law Court, citing the version of the statute applicable when Petitioner committed the crime, noted that "[t]he burden is on defendant to prove by a preponderance of the evidence that he lacked criminal responsibility." Lane, 532 A.2d at 145 (citing 17-A M.R.S. § 39(1) (1983)).
Id. The Law Court observed that the trial court
Id. The Law Court, noting that the issues were factual, concluded: "Although defendant's expert witnesses testified that defendant was psychotic at the time of the offense, the experts offered by the prosecution testified that it was more probable that defendant was playing out the role of an exorcist or acting in rage, retaining the ability to appreciate the wrongfulness of his conduct." Id. at 145.
The Law Court issued its decision on October 13, 1987. Id. at 144. Petitioner did not seek a writ of certiorari, nor did he file an application for state court post-conviction review. According to the docket sheet, Petitioner did not request any relief from the Court until 1989 when he filed a motion to obtain exhibits. (Record at 49.) The docket sheet reflects that Petitioner filed the motion, and trial counsel, who had previously withdrawn as counsel, acknowledged receipt of certain exhibits. (Id. at 50.)
The docket sheet reflects no further activity until the trial court issued an order in August 2009 after Petitioner asserted that "he would like to pursue a second appeal." (Id.) The court noted that Petitioner's request "may not be frivolous," and it ordered the appointment of counsel for the limited purpose of advising Petitioner "as to whether he has any available legal recourse regarding this case and if so what it is." (Id.) The court permitted counsel or Petitioner to request an expansion of the representation if counsel concluded that Petitioner had a valid claim. (Id.) Counsel was appointed, but there was no further court action on Petitioner's request. (Id.)
In August 2014, Petitioner, through a motion filed in state court, requested the case file. (Id.) The court denied the request. (Id.) In September 2014, Petitioner filed an application to the Law Court for leave to appeal the sentence. (Id.) The same month, the Sentence Review Panel dismissed the appeal as untimely. (Id.)
Petitioner alleges that he placed the form section 2254 petition into the prison mailing system on January 19, 2015. (Petition, ECF No. 1 at 16.) The petition was filed with the Court on January 23, 2015. (Id. at 1.)
In response to the petition, Respondent moved to dismiss on grounds that the petition was not timely filed. (Response, ECF No. 5.) Petitioner argued that due to mental illness, he was entitled to equitable tolling of the limitation period. (Reply, ECF No. 6.) The Court concluded that Petitioner had established a prima facie case for equitable tolling; the Court thus denied Respondent's motion to dismiss. (Recommended Decision, ECF No. 8; Order Affirming, ECF No. 10.) The Court noted that if Petitioner was not entitled to relief on the merits, the timeliness issue would be moot. (Recommended Decision at 11 n.9.) Respondent contends that Petitioner is not entitled to relief on the merits.
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."
Petitioner concedes that he failed to exhaust his state court remedies, which failure he attributes to mental illness. (Petition at 5.) Section 2254 provides that a court may deny habeas relief to a petitioner who has failed to exhaust, on a timely basis, the available state court remedies. See 28 U.S.C. § 2254(b), (c).
In Strickland, the Supreme Court set forth the federal constitutional standard by which claims of ineffective assistance are evaluated; Strickland requires a petitioner to demonstrate that "counsel's representation fell below an objective standard of reasonableness," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 688, 694. A court need not "address both components of the inquiry if the defendant makes an insufficient showing on one . . . ." Id. at 697.
The Court presumes "that counsel has `rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'" Companonio v. O'Brien, 672 F.3d 101, 110 (1st Cir. 2012) (quoting Strickland, 466 U.S. at 690). State court determinations of fact "shall be presumed to be correct," and "[t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). A court considers "the totality of the evidence," and "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 695-96. "[T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding." Id. at 696.
As to claims that were resolved in state court with a decision on the merits, the federal court applies a deferential standard of review, pursuant to 28 U.S.C. § 2254(d). See Dugas v. Coplan, 428 F.3d 317, 343 (1st Cir. 2005). However, when, as here, there is no state court post-conviction decision to review, a federal court that does not dismiss on procedural grounds, such as failure to exhaust, reviews the merits of the Strickland claims de novo. See id. (holding that because the state court did not reach the issue of Strickland prejudice, the Court would review the claims de novo).
Petitioner alleges that trial counsel's performance was deficient based on the failure to move the court to find Petitioner incompetent to stand trial; Petitioner asserts that such a motion was warranted based on a psychiatrist's report that Petitioner exhibited signs of "persistent psychosis" before trial. (Petition at 10.) Petitioner also contends that counsel should have moved to delay the trial until Petitioner was psychiatrically stabilized; he asserts that if counsel had done so, Petitioner would have sought to obtain mental health records and records of his traumatic brain injury. (Id.)
Respondent concedes and the record reflects that counsel did not move to find Petitioner incompetent to stand trial. Respondent, however, argues that Petitioner has presented no evidence to support the claim of either deficient performance by counsel, or prejudice. (Response at 6.)
In early November 1984, i.e., shortly after Petitioner was charged with the crime, the state court ordered the evaluation of Petitioner for competence to stand trial and criminal responsibility, pursuant to 15 M.R.S. § 101.
According to the report, Petitioner was examined during private interviews on five occasions from October 1984 to June 1985. (Id.) The report contains the following summary of the results of a competency examination conducted in February 1985:
(Id.)
A second report, set forth in the appendix to Petitioner's brief on appeal, also concludes that Petitioner was competent to stand trial.
Petitioner's section 2254 claim is based on a third report, conducted by a psychiatrist who reviewed the records and examined Petitioner in October 1985.
(Id.) Contrary to Petitioner's argument, the psychiatrist's report does not support Petitioner's contention that he was incompetent to stand trial. In fact, the psychiatrist's report did not address the competency issue.
In short, Petitioner's ineffective assistance claim fails because the court ordered a competency evaluation, and Petitioner has failed to demonstrate that it "was inaccurate or untrustworthy." Hurick v. Woods, ___ F. App'x ___, ___, No. 16-1554, 2016 WL 7093988, at *4, 2016 U.S. App. Lexis 23470, at *11 (6th Cir. Dec. 5, 2016) (order denying certificate of appealability); Jermyn v. Horn, 266 F.3d 257, 302 (3d Cir. 2001) (concluding that the petitioner had "not met his burden of demonstrating . . . that counsel was ineffective because he should have pursued the competency matter further than he did). Petitioner, therefore, has failed to demonstrate either deficient performance by counsel or prejudice.
Petitioner alleges ineffective assistance regarding the asserted defense that he was not criminally responsible due to mental illness. (Petition at 6.) Specifically, Petitioner contends that trial counsel failed to interview the State's expert witnesses, lay witnesses, or Petitioner, in order to prepare a response to the State's theory of the case that Petitioner "was either performing an exorcism on the victim's mother by harming the victim, or that he was acting in a rage for unexplained reasons." (Id.) Petitioner maintains that due to counsel's substandard preparation, the State's theories were unchallenged. (Id. at 6-7.)
Respondent argues that the trial transcript reflects that counsel had reviewed pertinent discovery material, including doctors' reports and mental health records, and that counsel's examination of witnesses at trial regarding the issues of exorcism and rage was adequate. (Response at 6.)
Whether Petitioner at the time of the crime was psychotic, or whether he was acting out a role of exorcist or acting in rage, was an issue of fact at trial. The statutory defense requires a defendant to prove he "lacked substantial capacity to conform his conduct to the requirements of the law, or lacked substantial capacity to appreciate the wrongfulness of his conduct," pursuant to 17-A M.R.S. § 39(1).
The Law Court's decision on appeal establishes, as a matter of fact entitled to the presumption of correctness under section 2254(e)(1), that Petitioner's counsel offered expert testimony that Petitioner was psychotic when he committed the offense. See Lane, 532 A.2d at 145. The Law Court noted, however, that the trial court as factfinder found that the preponderance of the evidence established that Petitioner was not psychotic, but rather had played the role of exorcist or acted on the basis of escalating rage. Id.
The record establishes that counsel appropriately raised the criminal responsibility defense, and that counsel presented relevant evidence in support of the defense. The fact the defense was unsuccessful does not render counsel's performance deficient. See Strickland, 466 U.S. at 699 (concluding that "there can be little question, even without application of the presumption of adequate performance, that trial counsel's defense, though unsuccessful, was the result of reasonable professional judgment"). Petitioner has demonstrated neither deficient performance of counsel, nor prejudice. The claim thus fails.
Petitioner alleges that trial counsel made only "negligible efforts" to obtain Petitioner's mental health records, and that counsel made no effort to obtain records of Petitioner's traumatic brain injury. (Petition at 9.) Petitioner does not identify any specific records that counsel failed to obtain, but he alleges generally that additional records would have aided the impeachment of the State's expert psychiatrist, would have supported a finding that Petitioner was not criminally responsible, and would have supported mitigation at sentencing. (Id. at 9-10.) Respondent contends the trial transcript reveals that Petitioner's counsel obtained Petitioner's mental health records, and that counsel's examination of witnesses at trial regarding the mental health issues was adequate. (Response at 6.)
In response to defense counsel's questions, the state forensic psychiatrist testified that he went over the following documents to prepare to testify: a "clinical services committee" document; an "initial community report;" various Marine Corps records, including a chronological record of medical care; medical records, including psychological reports, a report of a brain scan, and an assessment of past head injuries, from the Veterans Administration Hospital at Togus; medical records from the Franklin Memorial Hospital for a suicide attempt; medical records from St. Mary's General Hospital; 1983 records from Tri-County Mental Health Service; 1984 Social Security disability application documents, including psychiatric and psychological reports; 1980 and 1981 child protective services intake notes regarding the mother of the victim; police and investigative reports for the crime; and a videotaped interview of Petitioner on the day Petitioner was alleged to have committed the crime.
Petitioner's claim is unsupported by any facts. Petitioner has not identified any specific records that counsel failed to obtain, nor has Petitioner alleged how he was prejudiced by the absence of any particular records. Furthermore, the record contains testimony from the forensic psychiatrist that the many documents he reviewed were of the type regularly used by doctors to evaluate a patient's condition. (Trial Tr. at 1260-61.) Petitioner thus has failed to offer evidence of either deficient performance by counsel, or prejudice.
Petitioner alleges that trial counsel failed to impeach the State's psychiatrist through evidence that the psychiatrist opined, based on his forensic evaluation, that Petitioner was not psychotic at the time of the crime, but the same psychiatrist later treated Petitioner with antipsychotic drugs. (Petition at 7-8.)
The expert testified that, in his opinion, Petitioner was not psychotic when he committed the offense. (Trial Tr. at 1293.) The section 2254 petition does not allege when the psychiatrist first prescribed antipsychotic drugs for Petitioner; however, in Petitioner's 2009 request for court review, he states that the expert prescribed an antipsychotic drug less than a month after the trial.
Even if relevant treatment records were available, the fact that after trial the psychiatrist prescribed an antipsychotic drug would not suggest counsel was deficient at trial, because the information was not available at trial. Indeed, the fact that Petitioner was not psychotic at the time of the offense does not preclude Petitioner's need for antipsychotic medication many months later. Finally, based on the psychiatrist's trial testimony and Petitioner's allegations, it is reasonable to infer that the role of the psychiatrist changed from forensic expert before and during the trial, to treating psychiatrist after the trial. (Trial Tr. at 1232, 1272, 1275, 1298, 1301; Record, Lane Letter of July 10, 2009.)
In short, counsel's performance was not deficient, nor was Petitioner prejudiced, based on a failure to attempt to impeach the expert with facts that developed after the trial, or with facts that, in any event, were not necessarily inconsistent with the expert's conclusions at trial.
Petitioner alleges that trial counsel failed to move for the preparation of a presentence report, and, had counsel done so, Petitioner may have received a shorter sentence; Petitioner also argues that appellate counsel should have objected to the lack of a presentence report. (Petition at 11-12.) Petitioner contends that the failure to request a presentence report in Petitioner's case should be considered ineffective assistance "on its face." (Id. at 11.)
Counsel said: "I see no reason for a presentence report, your Honor. I think there's enough — more evidence before the Court than a presentence report would provide." (Trial Tr. at 1696.) The Court concluded:
(Id.)
Counsel's decision not to request a presentence report was "well within the range of professionally reasonable judgments," as counsel provided the reason for his decision, and the court agreed with counsel's reasoning. Strickland, 466 U.S. at 699. The Maine Law Court has noted that a presentence report serves "to bring to the attention of the court factual information about the convicted person as may assist the court" in sentencing the convicted person. State v. Dyer, 371 A.2d 1079, 1084 (Me. 1977). The information may include "his background, the environment from which he comes, his past behavioral pattern of conduct showing his inclinations or tendencies and his mental approach to societal problems." Id. In Dyer, the Law Court held that the trial court did not abuse its discretion when it did not request a presentence report, because the trial court had already obtained, from hearing the expert testimony at trial, "as complete a picture of all the circumstances surrounding the offense and the defendant" as would be provided through a presentence investigation. Id.
The record reflects the Court received extensive evidence about Petitioner during the trial. Insofar as Petitioner's history and his mental health issues were discussed at length at trial, it is difficult to conceive of any additional, relevant information that would have been generated by a presentence report. Petitioner, therefore, has failed to demonstrate deficient performance by either trial or appellate counsel based on the failure to object to the lack of a presentence report, nor has he proven prejudice.
Petitioner alleges that both trial and appellate counsel failed to object to the sentence. (Petition at 11-12.) Specifically, he argues that trial counsel, at sentencing, failed to advocate adequately for mitigation based on mental illness, and counsel failed to appeal from the sentence. (Id. at 11-12.)
Petitioner has presented no evidence to support his contention that trial counsel did not argue adequately for a mitigation of Petitioner's sentence based on Petitioner's mental illness. His argument regarding trial counsel's performance at sentencing, therefore, is unavailing and requires no further discussion. Petitioner's contention that counsel failed to challenge the sentence on appeal, however, warrants some discussion.
Petitioner was sentenced on November 22, 1985. (Docket sheet, ECF No. 5-1 at 39.) On December 17, 1985, the court entered an order granting trial counsel's motion to withdraw; it is not clear when counsel filed the motion to withdraw. (Id. at 40.) The court ordered that trial counsel be relieved "for purposes of all post-trial matters." (Id.) On the same date, the court appointed appellate counsel. (Id.)
On December 20, 1985, Petitioner, presumably through appellate counsel, filed a motion for enlargement of time to file a notice of appeal from the conviction, and on December 23, 1985, Petitioner filed a motion for enlargement of time to file an appeal from the sentence. (Id. at 41.) On January 6, 1986, the trial court granted the motion for enlargement of time to appeal from the sentence. (Id. at 42.) On January 17, 1986, the Appellate Division dismissed the appeal from the sentence for lack of jurisdiction. (Id. at 44.)
On this record, it is difficult to discern the reasons an appeal from the sentence was not pursued. Nevertheless, the Court can resolve Petitioner's ineffective assistance claim based on the prejudice prong of the Strickland test. See Strickland, 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."). Simply stated, Petitioner was not prejudiced from the lack of an appeal from the sentence.
When Petitioner was sentenced in 1985, the court relied on the factors set forth in State v. Anderson and Sabatino, Nos. 78-37, 78-40 (Me. App. Div. June 30, 1980), to determine whether a life sentence was justified for the crime of murder. See State v. Shortsleeves, 580 A.2d 145, 149-50 (Me. 1990) (discussing the factors that justify a life sentence under Anderson and Sabatino). One of the factors was "`[m]urder accompanied by torture, sexual abuse or other extreme cruelty inflicted upon the victim.'" Id. at 150 (quoting Anderson and Sabatino). The Law Court quoted from Anderson and Sabatino:
Shortsleeves, 580 A.2d at 150 (quoting Anderson and Sabatino).
The facts of the crime in this case unquestionably supported a finding that Petitioner committed the offense with extreme cruelty. See Shortsleeves, 580 A.2d at 147, 150 (describing the facts of the case and holding that the sentencing court did not err in finding that the defendant committed the murder with extreme cruelty). Any argument to the contrary would be meritless. Upon conviction, a life sentence was clearly supported by the record and unassailable on any appeal.
Regardless, therefore, of whether counsel failed to file timely a sentencing appeal, Petitioner has not shown "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," i.e., that Petitioner would have received something less than a life sentence. Strickland, 466 U.S. at 694. Because Petitioner has failed to demonstrate prejudice, the claim fails.
Petitioner alleges that appellate counsel failed either to advise him about or to file for state court post-conviction review, despite counsel's knowledge that Petitioner suffered from psychosis and was not capable of filing the petition. (Petition at 12-13.) Petitioner essentially argues that ineffective assistance of appellate counsel excuses Petitioner's procedural default, i.e., his failure to exhaust his state court remedies. (Id.)
In Coleman v. Thompson, 501 U.S. 722 752 (1991), the Supreme Court held that "[t]here is no constitutional right to an attorney in state post-conviction proceedings." In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court recognized a "narrow exception" to its holding in Coleman, when it held, as a matter of equity rather than constitutional law, that ineffective assistance of post-conviction counsel may excuse a procedural default of a substantial claim of ineffective assistance of counsel at trial. Martinez, 566 U.S. at 9. The Supreme Court has granted certiorari in Davila v. Davis, 650 F. App'x 860 (5th Cir. 2016) (per curiam) (unpublished), to decide the following question:
Davila v. Davis, 137 S.Ct. 810 (2017) (quoting the question to which the grant of certiorari was limited).
Assuming, arguendo, that the Martinez rule applies to appellate counsel,
Based on the foregoing analysis, an evidentiary hearing is not warranted under Rule 8 of the Rules Governing Section 2254 Cases. I recommend that the Court dismiss Petitioner's petition for habeas relief under 28 U.S.C. section 2254, and that the Court deny a certificate of appealability pursuant to Rule 11 of the Rules Governing Section 2254 Cases because there is no substantial showing of the denial of a constitutional right within the meaning of 28 U.S.C. § 2253(c)(2).
Title 17-A M.R.S. § 39 has since been amended. See P.L. 2005, ch. 263, §§ 5, 6.
