JOHN C. NIVISION, Magistrate Judge.
In this action, Petitioner Geoffrey Demond Reese seeks relief, pursuant to 28 U.S.C. § 2254, from a state court conviction for elevated aggravated assault, aggravated assault, and illegal possession of a firearm. (Petition, ECF No. 1.) The state court sentenced Petitioner to 29 years in prison. State v. Reese, 2010 ME 30, ¶ 1, 991 A.2d 806. Petitioner has also filed a motion for an order releasing him pending the decision on his section 2254 petition. (Motion, ECF No. 6.)
As the bases for his request for relief, Petitioner argues: (1) that he was wrongfully convicted based on evidence admitted in violation of his Fourth and Fifth Amendment rights, and as the result of evidentiary errors and a jury instruction error; (2) that his sentence of 29 years is excessive; (3) that trial counsel provided ineffective assistance in several ways, including by failing to investigate the evidence and cross-examine witnesses adequately, and by coercing Petitioner into testifying; and (4) that the State violated Brady v. Maryland, 373 U.S. 83 (1963).
The State has moved for dismissal citing the timeliness of the petition. After a review of the petition and the record, and after consideration of the parties' arguments, the recommendation is that the Court grant the State's request, and dismiss the petition. The recommendation is also that the Court dismiss as moot Petitioner's motion for an order to release him pending decision on his section 2254 petition.
Petitioner was charged, by indictment filed in May 2008 in the York County Superior Court, with attempted murder (Class A), 17-A M.R.S. § 201(1)(A); elevated aggravated assault (Class A), 17-A M.R.S. § 208-B(1)(A); aggravated assault (Class B), 17-A M.R.S. § 208(1)(B); and illegal possession of a firearm (Class C), 15 M.R.S. §393(1)(A-1). State v. Reese, No. ALFSC-CR-2008-01157 (Me. Super. Ct., Yor. Cnty., May 7, 2008). (State Court Record ("Record"), ECF No. 4-1 at 3.) The charge of attempted murder was dismissed before trial, and Petitioner agreed to a jury-waived trial of the possession-of-firearm charge. (Record at 11.)
After an eight-day trial, a jury found Petitioner guilty of the charges of elevated aggravated assault and aggravated assault, and the court found him guilty of the possession-of-firearm offense. (Record at 11-14.) Reese, 2010 ME 30, ¶ 1. The court sentenced Petitioner to a term of 29 years in prison on the elevated aggravated assault charge. (Record at 14.) Reese, 2010 ME 30, ¶ 1. The court also sentenced him to a term of 10 years in prison on the aggravated assault charge and to a term of five years in prison on the possession charge, with both sentences to be served concurrent to the 29-year sentence. (Record at 15.)
The Law Court affirmed both the convictions and the sentences. Reese, 2010 ME 30, ¶ 35. The Supreme Court denied Petitioner's petition for a writ of certiorari on October 4, 2010. (Record at 27.) Reese v. Maine, 131 S.Ct. 326 (2010).
Petitioner filed a pro se petition for post-conviction review on January 21, 2011, in the York County Superior Court. Reese v. State, No. ALFSC-CR-2011-00144 (Me. Super. Ct., Yor. Cnty., Jan. 21, 2011) (Supplemental State Court Record ("Supp. Record"), ECF No. 7-1 at 2.)
Petitioner filed another pro se petition for post-conviction review on June 14, 2011, in the York County Superior Court. Reese v. State, No. ALFSC-CR-2011-01216 (Me. Super. Ct., Yor. Cnty., June 14, 2011). (Record at 28.) The court held an evidentiary hearing in June 2012, and on August 28, 2012, the court entered an order denying the post-conviction petition. (Record at 32.) Petitioner filed a notice of discretionary appeal in September 2012. (Record at 32.) The appeal was dismissed in June 2013 for want of prosecution, based on Petitioner's failure to file a memorandum in support of his request for a certificate of probable cause or a motion to enlarge the time in which to file a memorandum. (Id. at 32, 35.)
In August 2013, the Law Court appointed new counsel and ordered the reinstatement of the discretionary appeal. (Id. at 32-33, 36.) On December 10, 2013, the Law Court entered an order denying Petitioner's request for a certificate of probable cause to appeal the post-conviction decision. (Record at 36.) On December 23, 2013, Petitioner moved for reconsideration by the Law Court; on January 10, 2014, the Law Court denied the motion. (Record at 36-37.)
Petitioner asserts that he placed the pending section 2254 petition in the prison mailing system on August 25, 2014. (Petition at 15.) On August 28, 2014, the petition was filed on the docket in this court. (Id. at 1.)
A petitioner in custody pursuant to a state court judgment has one year within which to apply for a writ of habeas corpus in federal court. See 28 U.S.C. § 2244(d)(1).
The one-year limitation period under section 2242(d)(1) is tolled, i.e., suspended, while a "properly filed" post-conviction review or other collateral review is "pending". 28 U.S.C. § 2244(d)(2). Because the State does not allege that either of Petitioner's two state court post-conviction matters was not properly filed, this recommended decision focuses solely on when those petitions were pending, for purposes of determining the tolling period. The First Circuit has held that a state court post-conviction matter is pending from the date on which the petition is filed until the date of its final disposition, including any appeal period. Drew v. MacEachern, 620 F.3d 16, 21 (1st Cir. 2010). The time during which an application is pending includes "the interval between a lower court's entry of judgment and the filing of an appeal with a higher state court." Id. at 20.
The Supreme Court has recognized that section 2244(d) "is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010). The Court has established a two-prong test for equitable tolling that requires a petitioner to show: "`(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 649 (quoting Pace, 544 U.S. at 418).
The section 2254(d)(1)(A) limitation period began to run on October 4, 2010, which was the day on which the Supreme Court denied certiorari. See id. at 635 ("And on that date —the date that our denial of the petition ended further direct review of [petitioner's] conviction — the 1-year [28 U.S.C. § 2244(d)(1)(A)] limitations clock began to run.").
The limitation period was tolled from and including January 21, 2011, which was the date on which Petitioner filed his first state court petition, to and including April 1, 2011, which was the date on which the 21-day state court appeal period expired following the state court's March 11, 2011, summary dismissal of that petition. The limitation period began to run again on April 2, 2011, and stopped on June 14, 2011, which was the date on which Petitioner filed his second post-conviction petition. The period from and including April 2, 2011, to and including June 13, 2011, comprised an additional 73 days of the one-year limitation period. As of June 14, 2011, therefore, a total of 182 days (109 + 73 = 182) of the 365-day limitation period had expired, and 183 days of the limitation period remained.
The parties agree that the period from and including June 14, 2011, to and including January 10, 2014, is tolled because the second post-conviction petition was pending during that period.
Petitioner argues that his section 2254 petition should be considered as timely filed based on the doctrine of equitable tolling. (Reply at 5.) Specifically, Petitioner alleges that he did not know about federal habeas relief and the filing deadlines until February 2014, and that he did not have access to documents in his post-conviction counsel's case file until April 26, 2014, due to counsel's failure to send him the case file on a timely basis. (Reply at 3; Affidavit, ECF No. 5-4 at 1-2.) Petitioner's equitable tolling argument is unpersuasive. Petitioner acknowledges that he was aware of the potential for federal habeas relief approximately 5 months before the filing deadline, and was in possession of the post-conviction file approximately 3 months before the deadline. Assuming, arguendo, that the post-conviction file was essential to Petitioner's ability to file the federal habeas petition, Petitioner had sufficient time within which to assert a claim. Petitioner, therefore, has not and cannot establish that he pursued his rights diligently or that his circumstances are extraordinary. See Holland, 560 U.S. at 645. Accordingly, the doctrine of equitable tolling is inapplicable in this case.
Based on the foregoing analysis, an evidentiary hearing is not warranted under Rule 8 of the Rules Governing Section 2254 Cases. The recommendation is that the Court dismiss Petitioner's motion for habeas relief under 28 U.S.C. section 2254 and 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). The recommendation is also that the Court dismiss as moot Petitioner's motion for an order releasing him pending the decision on his section 2254 motion.
(2) The time during which a properly filed application or State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation.
