JOHN C. NIVISON, Magistrate Judge.
In this action, Petitioner Joseph Dorazio seeks relief pursuant to 28 U.S.C. § 2254. In particular, Petitioner contends that he received ineffective assistance of counsel during a state court hearing at which he (1) admitted a probation violation, and (2) pled guilty to burglary of a motor vehicle. (Petition, ECF No. 1 at 7.) He alleges that his counsel did not, despite his request, seek a mental health examination to assess a possible defense of diminished capacity. (Id.) Petitioner also asserts that his communication with his counsel had broken down. (Id.) As explained below, the recommendation is that the Court deny Petitioner's request for relief and dismiss the petition.
In October 2012, Petitioner was charged by criminal complaint with gross sexual assault, in violation of 17-A M.R.S. § 253(1)(A) (Class A), and unlawful sexual contact, in violation of 17-A M.R.S. § 255-A(1)(P) (Class B). (Docket Sheet, ECF No. 10-1 at 1, 3.) In March 2013, he was indicted on those charges and an additional charge of domestic violence assault, in violation of 17-A M.R.S. § 207-A(1)(A) (Class D). (Id. at 1, 2.) The State subsequently amended the charge of unlawful sexual contact from Class B to Class C, a violation of 17-A M.R.S. § 255-A(1)(O). Petitioner pled guilty to the Class C offense, and the State dismissed the other two charges. Upon Petitioner's plea, the state court convicted Petitioner and sentenced him to a period of incarceration of three years and six months, with all but nine months suspended, followed by four years of probation. (Id. at 3.)
In December 2013, the State, alleging that Petitioner burglarized a motor vehicle, filed a motion to revoke Petitioner's probation. (Id. at 5; Motion for Probation Revocation, ECF No. 10-2 at 1.) The State also filed a new criminal charge of burglary of a motor vehicle. Prior to the probation revocation hearing in January 2014, Petitioner had been arraigned on the new charge. (Probation Revocation Hearing Tr., ECF No. 10-3 at 3.)
At the hearing, where he was represented by counsel, Petitioner admitted the probation violation and pled guilty to the burglary charge. (Id. at 4-5.)
During the plea hearing, Petitioner's counsel represented that Petitioner had a mental health history and had a guardian. (Id. at 5.) Counsel also informed the court that he had discussed the mental health issue with Petitioner, advised Petitioner that if he requested a mental health examination, the court would likely grant the request; however, Petitioner wanted to proceed with the plea. (Id. at 5-6.) Counsel told the court that he believed Petitioner was competent to proceed and did not need a competency hearing. (Id. at 6.)
Petitioner did not appeal the burglary conviction. (Supplemental State Court Record, ECF No. 12-1 at 3.) In addition, Petitioner did not seek leave to appeal, pursuant to 17-A M.R.S. § 1207(2) and M.R. App. P. 19, the probation revocation.
Pursuant to 28 U.S.C. §2254, Petitioner filed the pending petition in this Court in April 2014. (ECF No. 1.) The Court ordered the State to answer, and the State filed the state court record and its answer in June 2014, in which answer, the State requested summary dismissal of the petition. In support of its request for dismissal, the State cited Petitioner's failure to exhaust the available state court remedies as to the probation violation, and it argued that Petitioner's claim of ineffective assistance of counsel in a probation revocation proceeding is insufficient to constitute cause for a procedural default. (State Court Record, ECF No. 10; Answer, ECF No. 9.) Interpreting the pending section 2254 petition to challenge both the probation violation and the burglary conviction, the Court, in October 2014, ordered the State to supplement its answer and the state court record to address the burglary conviction. (Order, ECF No. 11.) The State supplemented its answer, and Petitioner filed his reply to the submission. (Supplemental Answer, ECF No. 12; Supplemental State Court Record, ECF No. 12-1; Reply, ECF No. 13.)
Based on the record before this Court, it appears that the time within which Petitioner could file a state court post-conviction petition challenging the burglary conviction has not yet expired.
The pending section 2254 petition is "mixed" in that it contains both unexhausted and technically exhausted claims. See Rhines v. Weber, 544 U.S. 269, 271 (2005) ("We confront here the problem of a "mixed" petition for habeas corpus relief in which a state prisoner presents a federal court with a single petition containing some claims that have been exhausted in the state courts and some that have not.") Because Petitioner did not seek discretionary state court review of his probation revocation,
When a mixed petition is presented, section 2254 provides that the court may deny the petition on the merits "notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2). In appropriate circumstances, the district court may "give the petitioner an opportunity to dismiss the unexhausted claims" or it may "stay the mixed petition and hold it in abeyance while the petitioner exhausts the unexhausted claims, then lift the stay and adjudicate the petition once all claims are exhausted." DeLong v. Dickhaut, 715 F.3d 382, 387 (1st Cir. 2013). However, it is "an abuse of discretion for the district court to grant a stay when the `unexhausted claims are plainly meritless.'" Id. (quoting Rhines, 544 U.S. at 277) (vacating and remanding the case because it was unclear whether the district court had evaluated the unexhausted claims).
A defendant has the right to counsel at a plea hearing. "The entry of a guilty plea, whether to a misdemeanor or a felony charge, ranks as a `critical stage' at which the right to counsel adheres." Iowa v. Tovar, 541 U.S. 77, 81 (2004). To succeed on a claim of ineffective assistance of counsel, a petitioner "must establish both that counsel's representation fell below an objective standard of reasonableness and that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Turner v. United States, 699 F.3d 578, 584 (1st Cir. 2012) (citing Strickland v. Washington, 466 U.S. 668, 697 (1984)). The Court need not "address both components of the inquiry if the defendant makes an insufficient showing on one. . . . 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." Strickland, 466 U.S. at 697. To demonstrate prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. As an alternative to a showing of cause and prejudice, a petitioner may demonstrate that review is "necessary to correct `a fundamental miscarriage of justice.'" Coleman v. Thompson, 501 U.S. 722, 748 (1991) (quoting Engle v. Isaac, 456 U.S. 107, 135 (1982)). "[A] credible showing of actual innocence may allow a prisoner to pursue his constitutional claims . . . on the merits notwithstanding the existence of a procedural bar to relief." McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013). When a petitioner's "claims fail on the merits, his related claims that counsel rendered ineffective assistance in failing to press the claims at trial or on appeal must also fail," and the Court need not determine whether the petitioner has demonstrated "`cause and actual prejudice.'" Tse v. United States, 290 F.3d 462, 465 (1st Cir. 2002) (quoting United States v. Frady, 456 U.S. 152, 167 (1982)).
Petitioner's argument is essentially that counsel's failure to request a mental health evaluation for diminished capacity resulted in a finding of competence that either "(1) was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or . . . (2) 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). Petitioner's underlying argument about the state court's assessment of his competence to plead guilty fails, whether it is viewed as a law-based challenge under section 2254(d)(1), or a fact-based challenge under section 2254(d)(2).
To assess Petitioner's law-based challenge pursuant to section 2254(d)(1), this Court looks to whether the Supreme Court has articulated a clearly-established test for competence to enter a guilty plea. The Supreme Court has held that the test for competence to plead guilty is no different from the test of competence to stand trial. Godinez v. Moran, 509 U.S. 389, 391 (1993) ("This case presents the question whether the competency standard for pleading guilty or waiving the right to counsel is higher than the competency standard for standing trial. We hold that it is not.") The test is whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam).
In this case, counsel advised the court that Petitioner had mental health issues and had a guardian, he informed the court that he had discussed with Petitioner the possibility of securing a mental health evaluation, and he advised the court that he was satisfied that Petitioner was competent to proceed and that Petitioner wished to proceed without an evaluation. Upon the court's inquiry, counsel also informed the court that he had observed nothing in his interaction with Petitioner to suggest that a competency hearing was necessary.
Although the court did not ask Petitioner directly about the mental health issue, the court did question Petitioner about his ability to pay an assessment that was required upon his conviction. Petitioner's response to the question about the assessment, and his response when the court asked for his plea to the charge contributed to the information available to the court about Petitioner's mental condition, particularly as to his rational and factual understanding of the proceedings. See id. The state court's test for determining competence did not involve an unreasonable application of the requirements set forth in Dusky. See id. Accordingly, Petitioner's law-based claim, pursuant to section 2254(d)(1), fails on the merits.
To the extent that Petitioner raises a fact-based challenge, he has a high burden to rebut the finding that he was competent to enter the plea. The state court's finding of competence is presumed to be correct, pursuant to section 2254(e)(1), which states:
See Yeboah-Sefah v. Ficco, 556 F.3d 53, 66 (1st Cir. 2009) ("The state court's factual finding[s] are `presumed to be correct' unless the petitioner rebuts this `presumption of correctness' with `clear and convincing evidence.'") (quoting 28 U.S.C. § 2254(e)(1)). A federal court's "deference" to the statutory presumption of correctness "extends not only to express findings of fact, but to the implicit findings of the state court." Garcia v. Quarterman, 454 F.3d 441, 444 (5th Cir. 2006); see also Campbell v. Vaughn, 209 F.3d 280, 289 (3d Cir. 2000) ("In interpreting [28 U.S.C. § 2254(e)(1)], the Supreme Court has held that an implicit finding of fact is tantamount to an express one, such that deference is due to either determination.") (citing Parke v. Raley, 506 U.S. 20, 35 (1992); Marshall v. Lonberger, 459 U.S. 422, 432-33 (1983); LaVallee v. Delle Rose, 410 U.S. 690, 692 (1973) (per curiam)). The state court's implicit finding that Petitioner was competent to enter a plea was not unreasonable and, therefore, Petitioner's fact-based claim, pursuant to section 2254(d)(2), fails on the merits.
Petitioner's claim of ineffective assistance of counsel with respect to the probation revocation is technically exhausted but procedurally defaulted because he did not seek review of the revocation pursuant to 17-A M.R.S. § 1207 and M.R. App. P. 19.
One cannot assume, however, that Petitioner has a federal constitutional right to counsel in the circumstances. Where a party does not have a constitutional right to counsel, the party cannot successfully assert a claim of ineffective assistance of counsel. See id. at 752 (holding that "[t]here is no constitutional right to an attorney in state post-conviction proceedings," and "[c]onsequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings") (citing, inter alia, Wainwright v. Torna, 455 U.S. 586 (1982)).
In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Supreme Court held that although a petitioner has a due process right to a hearing when the government seeks to revoke probation, the petitioner does not necessarily have a right to counsel. Id. at 781-82, 790. The right to counsel in a probation revocation proceeding is determined on a case-by-case basis. Id. at 790. "Although the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings, there will remain certain cases in which fundamental fairness — the touchstone of due process — will require that the State provide at its expense counsel for indigent probationers or parolees." Id.
This Court need not decide whether Petitioner had a constitutional right to counsel in the probation revocation proceeding. Petitioner's claim of ineffective assistance of counsel relates to the same mental health issue that Petitioner raised in his challenge to his plea to the burglary charge. Even assuming, therefore, that Petitioner had a constitutional right to counsel on the probation matter, Petitioner's claim of ineffective assistance of counsel fails for the same reason the argument was unsuccessful on his challenge to his conviction on the burglary charge. That is, the state court's implicit finding that Petitioner was competent to proceed, which finding was made after an appropriate colloquy with Petitioner's counsel, was not unreasonable.
Based on the foregoing analysis, an evidentiary hearing is not warranted under Rule 8 of the Rules Governing Section 2254 Cases. The recommendation is (a) that the Court dismiss Petitioner's petition for habeas relief under 28 U.S.C. section 2254, and (b) 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).
(Probation Revocation Hearing Tr., ECF No. 10-3 at 5-6.)
