D. BROCK HORNBY, District Judge.
On October 1, 2010, the United States Magistrate Judge filed with the Court, with copies to the parties, her Recommended Decision on 28 U.S.C. § 2254 Petition. Standring did not file an objection to the Recommended Decision, despite the Magistrate Judge's explicit direction that he must do so or waive his right to de novo review and to appeal the district court's order. Apparently Standring interpreted the Recommended Decision as a final decision and ignored the Notice at the end of the decision. Within the time to object, he requested a certificate of appealability "because I just received a notice of denial on my appeal of habeas corpus." If I treat his request for a certificate of appeal as both an objection to the Recommended Decision and a request for certificate of appealability if the Recommended Decision is affirmed, I nevertheless affirm the Magistrate Judge's Recommended Decision.
I have reviewed and considered the Recommended Decision, together with the entire record; I have made a de novo determination of all matters adjudicated by the Recommended Decision; and I concur with the recommendations of the United States Magistrate Judge for the reasons set forth in the Recommended Decision, and determine that no further proceeding is necessary.
It is therefore
Further, I find that a certificate of appealability should not issue in the event that Standring files a notice of appeal because there is no substantial showing of the denial of a constitutional right within the meaning of 28 U.S.C. § 2253(c)(2).
MARGARET J. KRAVCHUK, United States Magistrate Judge.
Ian Standring stands convicted of two counts of gross sexual assault, one count of unlawful sexual contact, and one count of sexual abuse of a minor after a jury trial in
After his conviction Standring filed an application to appeal his sentence and this application was denied. He simultaneously pursued a direct appeal and the Maine Law Court affirmed his convictions in State v. Standring, 2008 ME 188, 960 A.2d 1210. Standring also pursued post-conviction relief in the state court pressing in his initial pro se petition five grounds paralleling the five grounds raised in this 28 U.S.C. § 2254 petition.
This court will not grant a petition for habeas relief "with respect to any claim that was adjudicated on the merits in State court proceedings" unless a state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1), (2). The Maine courts' factual findings "shall be presumed to be correct" and Standring bears the burden of disproving these factual findings by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1). See also O'Laughlin v. O'Brien, 568 F.3d 287, 298 (1st Cir. 2009); McCambridge v. Hall, 303 F.3d 24, 34-35 (1st Cir.2002).
"Under the contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495.
Congress has provided that there is a gate-keeping exhaustion of state-law remedies requirement with regards to federal habeas claims of state court determinations. See 28 U.S.C. § 2254(b)(1)(A). Furthermore: "To provide the State with the necessary `opportunity,'" to review his or her claims "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." Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004) (emphasis added) (citation
With respect to the State's burden, in order for the state decision to be accorded § 2254(d) deference, the state court must have adjudicated the federal claim on the merits. See Clements v. Clarke, 592 F.3d 45, 52 (1st Cir.2010) ("A matter is `adjudicated on the merits' if there is a `decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground.' Teti v. Bender, 507 F.3d 50, 56-57 (1st Cir.2007).").
Standring's first 28 U.S.C. § 2254 ground is one framed as a Sixth Amendment ineffective assistance of counsel claim. He complains that his attorney did not call all of his witnesses, instead relying only on three. According to Standring, his attorney told Standring that it would be too late to get them all to court and that it would look bad for the defense if they had to rely on a subpoena to secure their appearance. This was clearly one of the three grounds in Standring's amended post-conviction petition which stated:
(Am. Pet. Post-conviction Review at 1, State App. C.)
This ground was not addressed by the post-conviction court. (Post-conviction Order at 1, State App. C.) The transcript for the state post-conviction proceeding has yet to be transcribed so it is not evident whether at some juncture during the hearing Standring abandoned that claim or whether the post-conviction justice, the same justice who presided over the trial proceedings, neglected to address the claim. What is clear is that Standring failed to seek discretionary review by the Maine Law Court of the denial of post-conviction relief. As stated earlier, 28 U.S.C. § 2254(b)(1) requires § 2254 petitioners to seek discretionary review by the State's high court in order to bring the claim to the federal venue. Baldwin, 541 U.S. at 29, 124 S.Ct. 1347; O'Sullivan, 526 U.S. at 845, 119 S.Ct. 1728.
Standring's second federal habeas challenge is that the prosecution had insufficient evidence against him, the state's case rested on Standring's confession to the detective after he was badgered for over an hour, and that this confession was inadmissible under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He indicates that he finally told the detective what he wanted to hear and that he was never informed of his right to his attorney or told that he could leave whenever he wanted.
Standring brought an ineffective assistance of trial counsel claim in his direct appeal concerning the failure of trial counsel to file a motion to suppress (a failure that made a direct Miranda challenge not cognizable on direct appeal). His appellate brief explained that the confession he made to Detective Caron "appears from the record to have been the byproduct of custodial interrogation and thus subject to the strictures of Miranda v. Arizona." (Appellant Br. at 43.) The Maine Law
In due course, Standring made this claim in his amended petition for post-conviction review:
(Am. Pet. Post-conviction Review at 1, State App. C.)
The post-conviction court addressed this claim in its findings and legal conclusions as follows:
(Post-Conviction Order at 3-5.) This court does not have before it the videotaped confession but I have read the pertinent portions of the trial transcript. And based on Standring's own testimony under oath about his interactions with Detective Caron which must be taken as the truth and therefore a reflection of what he would
In my view, this ground could be denied on its merits even if Standring had adequately exhausted this claim. See 28 U.S.C. § 2254(b)(2). However, as stated above, Standring failed to seek discretionary review by the Maine Law Court of the denial of post-conviction relief and 28 U.S.C. § 2254(b)(1) requires § 2254 petitioners to seek discretionary review of the State's high court in order to bring the claim to the federal venue. Baldwin, 541 U.S. at 29, 124 S.Ct. 1347; O'Sullivan, 526 U.S. at 845, 119 S.Ct. 1728.
Based on the statement of the grounds in his 28 U.S.C. § 2254 petition and the state record before me, Standring's third and fourth 28 U.S.C. § 2254 grounds fail for the same reason. In his third ground Standring complains that his sentence was excessive. He maintains that he should have received a shorter sentence of incarceration with twelve years of probation because twelve years of probation is almost the same as a prison term. This is a woefully undeveloped statement of a 28 U.S.C. § 2254 claim; the State correctly notes that in its current articulation it is a state law claim. The fourth 28 U.S.C. § 2254 challenge relates to Standring's psychiatric evaluation for sentencing purposes. He states that when his forensic evaluation was complete they had done all the tests and they still said that he was a low risk of reoffending. However, the sentencing judge said that she did not agree with this conclusion and determined that he was a high risk for reoffending. Standring feels that the court was bound to follow the report because it was an examination and report ordered by the court.
Standring did not contest the legality of his sentence in the context of his direct appeal. Compare State v. Ricker, 2001 ME 76, 18, 19, 770 A.2d 1021, 1026-27. The State has indicated that Stranding did file an application for leave to appeal his sentence on June 29, 2007, but does not indicate what his grounds were. The State notes that the application was denied on February 1, 2008. It has not included any pleadings or orders that pertain to that application in the § 2254 record.
These two grounds were included in Standring's pro se petition for post-conviction review. However, in the post-conviction assignment order the superior court explained:
(Post-conviction Assignment Order at 2, State App. C.)
If Standring wanted to challenge this determination—say to argue that these grounds had a constitutional stature and that he was entitled to review—he would have had to make those arguments to the Maine Law Court first and there is nothing in this record to suggest that he did. See Baldwin, 541 U.S. at 29, 124 S.Ct. 1347; O'Sullivan, 526 U.S. at 845, 119 S.Ct. 1728.
Finally, Standring is dissatisfied that the court allowed the prosecution to use his past against him during the jury trial to cast him in a bad light but, when Standring's attorney wanted to use the victims' pasts against them, the court blocked the effort.
In his memorandum on direct appeal Stranding advanced three issues and one was that he was denied his right to a fair trial when the trial court denied defense counsel the opportunity to cross-examine either of the alleged victims about their history of previous sexual abuse and allowed the prosecution to impeach Standring's credibility with highly prejudicial proof of a previous criminal conviction. (Appellant Br. at 35-39, State App. B.)
Although the motions in limine were not included in the record provided to this court, it is clear that the state filed a motion to preclude the defense from cross-examining the victims on their prior sexual history and defense counsel filed a motion seeking the exclusion of evidence of Standring's prior convictions. The best summary I can find of those pretrial motions in this record is in the appellant brief to the Maine Law Court:
(Appellant Br. at 4-5, State App. B.) Quoting State v. Robinson, 2002 ME 136, ¶ 13, 803 A.2d 452, 457 Standring clearly presented the issue as being one of his "`constitutional right, subject to the reasonable application of Rule 403, to introduce evidence of a victim's witness's past sexual behavior to expose a possible motive to lie.'" (Id. at 35.)
Robinson prefaced this observation by specifying that the court was applying the Sixth Amendment confrontation clause standard, citing Olden v. Kentucky, 488 U.S. 227, 231, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988). The Maine Law Court declared simply that the trial court did not abuse its discretion on its evidentiary rulings. Standring, 2008 ME 188, ¶ 2, 960 A.2d at 1211. However, it did cite the just described paragraph and the following paragraph of Robinson:
Robinson, 2002 ME 136, ¶ 15, 803 A.2d at 457-58.
Although the Maine Law Court's treatment of Standring's argument was brevis, it is fair to conclude that the Court and defense counsel were on the same page in terms of identifying the constitutional dimensions of the concern.
With regards to Standring's prior conviction and the trial testimony, after establishing Standring's birth date, the first question the prosecutor asked was, "And you're the same Ian Standring that was convicted in this court of burglary of a motor vehicle and theft back on June 9th of 2005. Is that correct" (Trial Tr. at 303.) Standring simply replied, "Yes, I am." (Id.) Other than confirming that Standring was twenty-one years old at the time, that question and answer was the extent of the trial testimony on his previous convictions.
Standring was actually the first witness to testify concerning his prior criminal status by indicating during direct examination that he was on probation at the time that he was arrested for his alleged conduct with the two minors. (See Trial Tr. at 296.) At a sidebar prior to cross-examination defense counsel indicated that Standring was going to admit the prior convictions and there was no need for the prosecutor to make inquiries outside the presence of the jury. (Id. at 297.) Counsel renewed her objection to the allowance of this line of inquiry, explaining, "we have
(Id. at 298.) The trial justice stated that she was "going to leave it that you can inquire about one of each." (Id.) Defense counsel then made a tactical decision not to have the court deliver a limiting instruction at the time of the prosecutor's use of the prior convictions as it could possibly draw more attention to the history than if it was delivered at the close of trial. (Id. at 302-303.)
With respect to the issue of the victims' sexual history, there was a sidebar just prior to defense counsel's cross-examination of the first victim to testify. (Trial Tr. at 60-62.) The following exchange took place between the prosecutor, Allen Kelley and defense counsel, Pamela Ames:
(Id. at 60-61.) The Court found that this victim's testimony on direct exam did "not show any extraordinary knowledge for a person her age in 2007 after having taken health classes" and did not allow the inquiry into prior incidences. (Id. at 62.)
When the second victim was due to be cross-examined, a teenager who was fifteen years old at trial, Standring's attorney indicated that she did not think that the tender years doctrine applied to this young woman and that she could not make that argument "with a straight face." (Id.
The case discussed during the trial and in Standring's appellant brief is State v. Jacques, in which the Law Court acknowledged: "Although the wording of M.R.Evid. 412 is not as clear as it might be, the Advisory Committee Note is explicit that evidence constitutionally required to be admitted' overrides the exclusion in the text of Rule 412." 558 A.2d 706, 708 (Me. 1989) (citing, with respect to United States Supreme Court law, Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) for the proposition that a "state's interest in protecting juvenile offender does not take precedence over defendant's right to effectively cross-examine."). That decision expanded:
Id. (footnote omitted).
Standring's case is not so different from the 28 U.S.C. § 2254 petitioner's confrontation clause claim in Wilson v. Warden, Civ. No. 10-28-B-W, 2010 WL 1258189, *6-7 (D.Me. Mar. 17, 2010), apropos which I entered a recommended decision earlier this year.
Wilson, 2010 WL 1258189, *6-7. I reach a similar conclusion with regards to the trial court's ruling in Standring's case, as affirmed by the Maine Law Court. The trial justice's decision was not an unreasonable application of Davis v. Alaska and Olden v. Kentucky.
For these reasons, I recommend that the Court deny Standring 28 U.S.C. § 2254 relief. I further recommend that a certificate of appealability should not issue in the event Standring files a notice of appeal because there is no substantial showing of the denial of a constitutional right within the meaning of 28 U.S.C. § 2253(c)(2).
October 1, 2010.
