JOHN C. NIVISON, Magistrate Judge.
In this action, Petitioner Timothy T. Wilcox seeks relief pursuant to 28 U.S.C. § 2254. (Petition, ECF No. 1.) Following a jury trial in March 1996, Petitioner was convicted of the following crimes involving three victims in three separate incidents: two counts of kidnapping, 17-A M.R.S. § 301 (Class A); eight counts of gross sexual assault, 17-A M.R.S. § 253 (Class A); two counts of robbery, 17-A M.R.S. § 651 (Class A); and one count of unlawful sexual contact, 17-A M.R.S. § 255 (Class C). (State v. Wilcox, No. CR-95-881 (Me. Super. Ct., Cumberland Cty., Oct. 18, 1996), Docket Record at 3, Judgment and Commitment at 1.)
Petitioner's section 2254 petition follows the denial of a second state court petition that was "triggered by a May 2015 letter from the Department of Justice stating that a witness from the FBI Laboratory had presented hair comparison testimony `containing erroneous statements' at the trial." (Wilcox v. State, No. CUMCD-CR-2015-05036 (Unified Criminal Docket, Cumberland Cty., Apr. 7, 2017), Order.)
Petitioner essentially contends in his section 2254 petition that the state court decision was either contrary to, or involved an unreasonable application of, federal law, pursuant to 28 U.S.C. § 2254(d)(1).
After a review of the section 2254 petition, the State's response to the petition, and the record, I recommend the Court deny Petitioner's request for relief, and dismiss the petition.
Petitioner did not appeal from the conviction. The Sentence Review Panel of the Law Court denied Petitioner's request for review of the sentence. (State v. Wilcox, No. SRP-96-103, Docket Record.)
The Superior Court denied Petitioner's first state court petition following an evidentiary hearing. Wilcox v. State, No. PORSC-CR-1997-00590 (Me. Super. Ct., Cumberland Cty., June 11, 2004), Docket Record at 2.) The State represents that Petitioner did not file a request for discretionary review by the Law Court. (Response at 3.) The State also asserts that the section 2254 petition "does not raise any grounds pertaining to the allegations raised in the first state petition for post-conviction review. . . ." (Response at 3 n.1.)
Petitioner's second state court petition, filed in 2015, was based on the same underlying facts he asserts in his section 2254 petition, namely that the trial testimony of a Federal Bureau of Investigation special agent "exceeded the limits of science by overstating the conclusions that may appropriately be drawn from a positive association between evidentiary hair and a known hair sample." (May 5, 2015, Letter, ECF No. 1-3 at 2; Wilcox v. State, No. CUMCD-CR-2015-05036 (Cumberland Cty.), Attachment to Petition for Post-conviction Review.)
In its May 5, 2015, letter and accompanying documents, the Department of Justice identified three possible ways in which the testimony or report presented exceeded the limits of science.
(Id.)
Petitioner, represented by appointed counsel, filed an amended state court petition in May 2016. (Docket Record at 1-2, Amended Petition.) In the amended petition, Petitioner argued he had a right to a new trial as to the convictions related to one or possibly two of the victims, based on the flawed FBI hair comparison analysis (Ground 1); he also claimed ineffective assistance of trial counsel based on counsel's failure to move to sever the charges regarding one of the victims (Ground 2); and he alleged ineffective assistance of post-conviction counsel based on counsel's failure to argue in the first post-conviction petition an ineffective assistance claim for failure to sever (Ground 3). (Amended Petition at 10, 15, 17-18.) Finally, Petitioner challenged the sufficiency of the evidence for the convictions regarding one of the victims. (Id. at 10.)
Petitioner acknowledged that the claim regarding trial counsel's performance could have been raised in the first post-conviction review, but he argued that "in light of the new evidence in this case, that claim must be evaluated differently" than it would have been in the first post-conviction review. (Id. at 3.) The State did not challenge the timeliness of Ground 1, but it argued the ineffective assistance claim against trial counsel was not filed timely, and that the ineffective assistance claim against post-conviction counsel was not cognizable and was not filed timely. (Order at 1-2.) The court dismissed the ineffective assistance claims (Grounds 2 and 3) in August 2016, and it held an evidentiary hearing on Ground 1 in February 2017. (Docket Record at 3-4, Order at 2.) Following the hearing, the parties submitted written argument. (Docket Record at 4; Petitioner's Written Argument; Respondent's Post-Hearing Brief.)
In April 2017, the court denied Ground 1 of the amended petition. (Docket Record at 4, Order at 12-13.) The court noted that the sole issue on post-conviction review was whether Petitioner had demonstrated prejudice, i.e., "whether [Petitioner] has shown a reasonable probability that, absent the testimony of FBI Agent Joseph Dizinso that has now been called into question, the result of the proceeding would have been different." (Order at 2 (citing, inter alia, Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).)
After reviewing the evidence of identity at trial, the court noted the evidence of Petitioner's identity in the crimes against one of the victims was "not as strong" as the evidence that linked Petitioner to the other victims. The evidence the court concluded was not as strong consisted of (1) a photo array in which the victim identified Petitioner and another person as the possible assailants; (2) the victim's in-court testimony that "the assailant `kind of looked like the guy sitting in the courtroom right now,'" but with some changes in his facial hair; and (3) the hair comparison testimony of Dizinso. (Id. at 9-10.) The court concluded, however, that "the evidence offered by the State regarding the three victims established a similar modus operandi leading to a strong inference that all the assaults were committed by the same person." (Id. at 10.)
(Id. at 10-11) (footnote omitted).
The court noted evidence that "all three women had a gun held to their heads and were first compelled to perform oral sex on their assailant." (Id. at 11.) There were other common details as well, including that two of the victims, "testified that the assailant had difficulty maintaining an erection," and that "[a]ll three victims were eventually left by the side of the road with little or no clothing." (Id.) The court observed that Petitioner "was again cruising the same neighborhood in his vehicle in the late evening" when he was arrested four nights after the last assault. (Id.)
The court found there was "powerful evidence" of identity:
(Id. at 11-12.)
The court concluded Petitioner had not demonstrated prejudice because the evidence, "especially the signature-like nature of the three assaults, is sufficiently compelling" to establish Petitioner's identity as the perpetrator, and therefore, Petitioner was not entitled to relief. (Id. at 12-13.)
Petitioner requested discretionary review of the post-conviction decision. (Wilcox v. State, No. Cum-17-160, Docket Record, Memorandum in Support of Certificate of Probable Cause.) The memorandum addressed arguments regarding the admissibility of evidence at a new trial; Petitioner argued that his decision to challenge only the convictions concerning the crimes against one of the victims "alters the post-conviction court's analysis about the likelihood of a different verdict." (Memorandum in Support of Certificate of Probable Cause at 2-3.)
The Law Court denied discretionary review. (Wilcox, No. Cum-17-160, (Me. June 7, 2017), Order Denying Certificate of Probable Cause.)
Petitioner asserts he placed his section 2254 petition in the prison mailing system on August 16, 2017. (Petition at 15.)
Petitioner's state court post-conviction claim was based principally on his argument that he was prejudiced because the evidence in support of the convictions at issue on post-conviction was insufficient in the absence of the hair comparison testimony.
"Sufficiency claims are generally evaluated under § 2254(d)(1) and we look to `whether the state court decision constitutes an unreasonable application of clearly established Supreme Court case law.'" O'Laughlin v. O'Brien, 568 F.3d 287, 298 (1
O'Laughlin, 568 F.3d at 299.
"[T]he standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson, 443 U.S. at 324 n.16; see also King v. MacEachern, 665 F.3d 247, 253-55 (1st Cir. 2011) (reviewing, in a section 2254 claim of insufficient evidence, the state law elements of the relevant crime of conviction).
In Petitioner's case, the state court, applying Maine law, concluded that the three sexual assaults were properly joined because they were "`connected in time, purpose, and modus operandi.'" (Order at 11-12 (quoting Pierce, 2001 ME 14, ¶ 16, 770 A.2d 630).)
A review of the record reflects that the state court's conclusion, that the trial evidence, absent the hair comparison analysis, was sufficient to identify Petitioner as the perpetrator of the crimes challenged in the state court post-conviction review, was neither contrary to nor an unreasonable application of Jackson. See Hurtado, 245 F.3d at 18 (noting that even under a deferential standard of review, the federal court considers the "`totality of the evidence' in evaluating the state court's decision"). The state court pointed to a number of specific similarities among the assaults, which similarities were compelling evidence that the same individual was the perpetrator of each of the assaults. In short, the state court's findings, that the similarities in the circumstances of the assaults on the three victims were "powerful evidence" that Petitioner "was the assailant in all three cases," are supported by the record evidence. (Order at 12.) Petitioner, therefore, is not entitled to relief under section 2254(d)(1).
Based on the foregoing analysis, an evidentiary hearing is not warranted under Rule 8 of the Rules Governing Section 2254 Cases, and I recommend the Court deny relief and dismiss Petitioner's motion 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).
Hurtado v. Tucker, 245 F.3d 7, 18 (1
However, because the Law Court's order did not explain the Court's reasoning for denying a certificate of probable cause, the federal court may consider the trial court's decision:
Wilson v. Sellers, ___ U.S. ___, ___, 138 S.Ct. 1188, 1192 (2018) (noting the state may rebut the presumption).
The admissibility issue in Petitioner's case is legal rather than factual, and therefore section 2254(d)(2) does not apply. The issue is procedurally defaulted to the extent it was part of Petitioner's untimely ineffective assistance claim for failure to move to sever the charges. "Federal habeas courts generally refuse to hear claims `defaulted . . . in state court pursuant to an independent and adequate state procedural rule.'" Johnson v. Lee, ___ U.S. ___, ___, 136 S.Ct. 1802, 1803-04 (2016) (per curiam) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)). The rule that "a defendant procedurally defaults a claim raised for the first time on state collateral review if he could have raised it earlier on direct appeal" is one such rule. Id. at 1804. Because Petitioner failed to appeal from the judgment, and because he failed to raise the ineffective assistance claim on a timely basis in state court, he defaulted the claim in state court pursuant to an independent and adequate state rule.
Although the state court recognized that if the identity evidence regarding the victim in the convictions at issue in the post-conviction proceeding had not included the modus operandi evidence, there is a reasonable probability the outcome might have been different, the state court concluded there was no prejudice. (Order at 10.) To the extent the state court's conclusion that prejudice was lacking was based on a determination that significant modus operandi evidence would likely have been admissible in his separate trial, the state law evidentiary issue is not subject to review in a federal habeas action. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("Today, we reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."); Spencer v. Texas, 385 U.S. 554, 563-64 (1967) ("Cases in this Court have long proceeded on the premise that the Due Process Clause guarantees the fundamental elements of fairness in a criminal trial. But it has never been thought that such cases establish this Court as a rule-making organ for the promulgation of state rules of criminal procedure. And none of the specific provisions of the Constitution ordains this Court with such authority.") (citations omitted).
Furthermore, to the extent the state court's conclusion that prejudice was lacking was based in part on a determination that the admission of modus operandi evidence in a separate trial would likely not result in a violation of Petitioner's federal due process rights, such a conclusion is not contrary to, or an unreasonable application of, clearly established federal law. See § 2254(d)(1); Estelle, 502 U.S. at 70 (holding that the admission of prior injury evidence, which was relevant to the issue of criminal intent, did not violate due process); Dowling v. United States, 493 U.S. 342, 345, 352-53 (1990) (holding that testimony, offered in part on the issue of the petitioner's identity, concerning an alleged crime of which the petitioner had been acquitted, did not violate due process, particularly in light of the limiting instructions given at trial).
