2004 | Cited 0 times | D. Maine | February 19, 2004


Petitioner Michael Shone, convicted in the State of Maine of numerousmotor vehicle charges, brings this petition for habeas corpus reliefpursuant to 28 U.S.C. § 2254. (Docket No. 1.) I now recommend thatthe court DENY the petition.


In 1999 Michael Shone was involved in four separate motor vehicleincidents spanning two southern Maine counties, York and Cumberland:April 10 (Cumberland County, April 16 (York County), December 11 (YorkCounty), and December 25 (conduct in both York and Cumberland County).Shone pled guilty to charges arising from each of the episodes and wasseparately sentenced pursuant to plea agreements in each county. Shonedid not contend then, and he does not assert now, that he is not guiltyof any of the charges brought against him. Rather, Shone complains thathe did not receive effective assistance of counsel during the pleaprocess and that his constitutional rights were thus violated. He alsoattempts to resuscitate in this court a stand alone claim of doublejeopardy in connection with charges in York and Cumberland countiesrelatingPage 2to the December 25, 1999, episode. The State, in the firsttwenty-two pages of its response, has provided a careful summary of eachcount arising from each episode, the resulting judgment and sentence, andthe attendant appellate and state post-conviction activities. I will notrepeat that replete procedural history here, but the bare essentials aresummarized below.

1. April 10, 1999, Motor Vehicle Accident in Cumberland County

On April 10, 1999, then twenty-two year old Michael Shone was involvedin a motor vehicle accident in South Portland. He was indicted for threecrimes (see PORSC-CR-1999-931), the most serious being acharge of operating after habitual offender revocation while having aprior operating under the influence charge. This is a Class Ccrime having a maximum potential penalty of five years of imprisonment.17-A M.R.S.A. § 1252(2)(C). On August 20, 1999, he was sentenced onthese matters to 364 days in the custody of the Department ofCorrections, all but thirty days suspended with two years of probationand a $1,000 fine on the most serious charges.

On December 30, 1999, a (second) motion for probation revocation`1was filed on his August 20 sentence, alleging conduct that forms thebasis of the December 11 and the December 25, 1999, motor vehicle chargesdiscussed below. On June 29, 2000, Shone's probation was revoked and hewas ordered to serve the remaining eleven months of his sentenceconcurrent with the sentence of two years of imprisonment he received inconnection with the December 11 and December 25 motor vehicle incidentsin Cumberland County (PORS-CR-2000-466) and consecutively to thesentences he received in connection with the April 16 and December 25motor vehicle episodes inPage 3York County (ALFSC-CR-1999-738 and 2000-95). Shone is now held incustody by the State of Maine in execution of the sentence imposed inthis case and in PORSC-CR-466, having completed the sentences imposed inthe York County matters.

Attorneys Michael Scott and Andrew Bloom of the Boulos Law Firmrepresented Shone throughout these proceedings. No direct appeal was evertaken in connection with the probation revocation or the underlyingjudgment.

2. April 16, 1999, Motor Vehicle Incident in Saco

These motor vehicle charges, similar in nature to the April 10incident, resulted in a July 9, 1999, indictment being returned by theYork County Grand Jury. (See ALFSC-CR-99-738). Once more, themaximum potential sentence was five years of imprisonment. AttorneyMichael Scott represented Shone on these charges as well. On March 24,2000, (approximately three months prior to the Cumberland County sentenceon PORSC-CR-1999-931), the presiding justice sentenced Shone toconcurrent straight terms of four years of imprisonment with no probationon these charges and on the December 25, 1999, York County charges(ALFSC-CR-2000-95). In what the State apparently views as an unauthorizeddeparture from required procedure under State law, the sentencing court"discharged" the mandatory minimum fines required by statute.(See State's Resp. at 9 n.8). Shone filed timely notices ofappeal from both of these convictions and also applications to allowappeal of his sentences. His direct appeals were dismissed because heneither filed his brief nor responded to the State's motion to dismissthe appeal. His application to allow an appeal of his sentence was deniedby the Law Court on December 19, 2000.Page 4

Michael Scott of the Boulos Law Firm was attorney of record throughoutthese proceedings.

3. December 11, 1999, Motor Vehicle Incident in Scarborough

While on probation for the April 10 motor vehicle offense, Shone tookhis grandfather's Cadillac without permission, operated it at a recklessrate of speed while under the influence of intoxicating liquor and whileunder revocation. Ultimately, he became involved in a motor vehicleaccident, causing serious injury to an innocent third party and totalingthat person's car. On March 31, 2000, a five-count information was filedagainst Shone in Cumberland County as a result of this December 11incident. (See PORSC-CR-2000-466). Attorney Andrew Bloom of theBoulos Law Firm appears as attorney of record in this case. Shone pledguilty to these charges and was sentenced on June 29, 2000, at the sametime as he was sentenced on the probation revocation. The sentence inthis case ran concurrent with that revocation and as indicated above,both of these sentences were consecutive to the York County cases. Shonewas sentenced to five years of imprisonment with all but two yearssuspended, followed by four years probation, with various conditions. Thesentencing justice also imposed the mandatory fine in its entirety, fees,and surcharges. No direct appeal was ever taken from this judgment.

4. December 25, 1999, Motor Vehicle "Episode" in both York andCumberland Counties

On December 25, 1999, again while under the influence of intoxicatingliquors, Shone stole a vehicle in Portland (Cumberland County) and drovethe stolen vehicle into York County. He was observed operating thevehicle, refused to stop for a law enforcement officer, and a high-speedchase ensued. Eventually, Shone left York CountyPage 5and drove the vehicle back into Cumberland County, once moreattempting to elude police officers. The pursuit ended in South Portlandwhen the stolen vehicle became disabled. Shone was charged in York Countywith two Class C crimes and operating under the influence. (SeeALFSC-CR-2000-95, discussed above in conjunction with Saco incident andsentence imposed on March 24, 2000.) He received a sentence of four yearsof straight imprisonment, concurrent with the sentence inALFSC-CR-1999-738. Michael Scott of the Boulos Law Firm again appears asattorney of record.

As with the other York County case, a direct appeal was taken but notpursued by Shone and it was ultimately dismissed by the Law Court.

The Cumberland County aspect of this episode resulted in separatecriminal charges. (See PORSC-CR-2000-466). Those charges werethe last two counts of the information filed on March 31, 2000, anddiscussed above in connection with the December 11, 1999, incident inScarborough. On these charges Shone likewise received a sentence of fiveyears with all but two years suspended followed by four years probationand, additionally, he was ordered to pay all mandatory fines, fees, andsurcharges, and restitution. Attorney Andrew Bloom of the Boulos Law Firmappears as attorney of record. As indicated under the December 11incident, no direct appeal or leave to appeal sentence was ever taken inconjunction with this information.

5. The State Post-conviction Process

On February 23, 2001, Shone filed a state post-conviction petition inYork County. Retained counsel appeared on his behalf. The petitionidentified the criminal judgments in ALFSC-CR-1999-738 andALFSC-CR-2000-95 as the convictions sought to be vacated, but the actualallegations appeared to relate to PORSC-CR-2000-466.Page 6Counsel met with the court in conference, and as a result of thatconference an order issued giving petitioner until January 25, 2002, tomove to amend his York County petition and to seek a change of venue toCumberland County. Rather than proceed in that fashion, Shone filed a"new" petition in the Cumberland County Superior Court on February 13,2002.2

On July 25, 2003, Maine Superior Court Justice Thomas Warren issued anorder denying post-conviction relief, containing within it a thoroughanalysis addressing the five ineffective assistance of counsel claimsraised by Shone's post-conviction counsel. Those five claims includedclaims that trial counsel failed to provide effective assistance because:(1) they failed to pursue the double jeopardy issue in the context of theconvictions in both York and Cumberland Counties stemming from Shone'sconduct on December 25, 1999; (2) counsel failed to file a motion tochange venue of the December 25, 1999, Cumberland County charge; (3)counsel did not use Shone's medical records to argue for a more favorabledisposition at the Cumberland County sentencing; (4) counsel should haveraised the issue of Shone's inability to pay any fines, fees, orPage 7surcharges at the Cumberland County sentencing; and (5) counselwere ineffective because they did not fully advise him about his right toenter an "open plea" as to the charges against him.

Shone filed a timely notice of appeal from the judgment on hispost-conviction pleading. The Law Court, through Associate JusticeRudman, denied Shone a certificate of probable cause to proceed with theappeal, effectively terminating State review of this matter.


In this court Shone now attempts to raise four separate groundsclaiming he is entitled to post-conviction relief. Three of the groundsmirror three of the ineffective assistance claims raised in state courtand fully considered by Justice Warren: Shone again claims that hiscounsel provided ineffective assistance by failing to request a change ofvenue; failing to present medical records and testimony at the time ofsentencing; and failing to request waiver of fines and fees because ofShone's indigency.

Justice Warren appropriately applied law that was consistent with thegoverning federal law to these claims of ineffective assistance ofcounsel in the context of a guilty plea. See Strickland v.Washington, 466 U.S. 668 (1984); Hill v. Lockhart,474 U.S. 52 (1985); see also McCambridge v. Hall 303 F.3d 24, 36(1st Cir. 2002) (in a case where state precedent was relied on in thestate proceedings and Supreme Court precedent not actually cited,providing that what is necessary is that the state court applied theproper rule of law). According to Justice Warren the request to changevenue would have been a nonstarter given that the respective prosecutingattorneys in both York and Cumberland counties were opposed to theconsolidation of the cases. Theoretically, the December 25Page 8eluding charge — with the attendant allegations that it wascommitted in more than one county — could have been transferredover the prosecutor's objection. See Me. R. Crim. P. 21(b)(4).However, as Justice Warren noted, the December 11 incident was going toremain in Cumberland County and a change of venue regarding the December25 charge would not have altered the outcome. Justice Warren was alsosatisfied that counsel acted prudently in not presentingShone's mental health records at the time of sentencing because thoserecords portrayed him as noncompliant and acting against medical advice.Finally, Justice Warren determined that in spite of Justice Brennan'searlier order in the York County case, there was no statutory authorityto waive the fines in the first instance, and counsel's failure to seeksuch a remedy was not ineffective assistance.

This court's review of Justice Warren's adjudication of the merits ofthis claim is circumscribed by the statutory mandate of28 U.S.C. § 2254(d): An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a [s]tate court shall not be granted with respect to any claim that was adjudicated on the merits in [s]tate court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established [f]ederal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the [s]tate court proceeding.28 U.S.C. § 2254(d).

A state court decision is "contrary to" federal law "if the state courtarrives at a conclusion opposite to that reached by [the Supreme Court]on a question of law or if the state court decides a case differentlythan [the Supreme Court] has on a set of materially indistinguishablefacts." Williams v. Tavlor, 529 U.S. 362, 412-13 (2000). Astate decision involves an "unreasonable application" if the state courtidentifies the correctPage 9governing legal principle from a Supreme Court decision, but"unreasonably applies that principle to the facts of the prisoner'scase." Id. at 413. The reasonableness test is an objective one;in making its decision, a federal court must "ask whether the statecourt's application of clearly established federal law was objectivelyunreasonable." Id. at 410-11; see also id. at 410("The term `unreasonable' is no doubt difficult to define. That said,it is a common term in the legal world and, accordingly, federal judgesare familiar with its meaning. For purposes of today's opinion, the mostimportant point is that an unreasonable application of federallaw is different from an incorrect application of federallaw."). Justice Warren identified the correct governing legal principlesand reasonably applied that principle to the facts of Shone's ineffectiveassistance claims. The ineffective assistance claims need no furtherelaboration than the discussion set forth in Justice Warren's order.

One final claim remains. Shone attempts to raise a "straight up" claimof double jeopardy with respect to his dual convictions in both York andCumberland counties on the eluding charge. Justice Warren discussed thisclaim in the context of an ineffective assistance claim raised by Shonein state court. Justice Warren stated: "Whether double jeopardy appliesis an interesting question." (Post-Conviction Order at 5.) However, inconsidering the ineffective assistance claim, the state court concludedthat it did not need to resolve the issue because there simply was noreasonable probability that Shone's Cumberland County sentence would havebeen any different in the absence of the eluding count. To the extentthat this court recasts Shone's Double Jeopardy claim as a claim ofineffective assistance, obviously Justice Warren's analysis isunassailable under the 28 U.S.C. § 2254(d) standard vis-a-vis theapplication of the Strickland prejudice prong.Page 10

Shone's double jeopardy claim as a straight-up claim is not cued for§ 2254 review in this court because he has not exhausted his remedieswith respect to this claim as required by § 2254(b)(1)(A). The Statecontends that it is procedurally defaulted and that appears to me to be afair reading of Maine law and procedure. It is clear that in state courtShone framed the issues surrounding the double jeopardy claim as anineffective assistance plaint. (Pet.'s Mem. Support Request CertificateProbable Cause.) He did not even take a direct appeal from the CumberlandCounty eluding conviction and his York County direct appeal was dismissedwhen he failed to file a brief. It is clear that the straight-up claim ofdouble jeopardy has never been properly presented for the state court'sconsideration. I am skeptical that this is the kind of unexhausted claimthat would warrant heeding the Supreme Court's directive "to dismiss apetition for a writ of habeas corpus containing any claims that have notbeen exhausted in the state courts." Rose v. Lundy,455 U.S. 509, 510 (1982). However, I am not troubled by the question as "[a]napplication for a writ of habeas corpus may be denied on the merits,notwithstanding the failure of the applicant to exhaust the remediesavailable in the courts of the State." 28 U.S.C. § 2254(b)(2). Theprejudice standard for ineffective assistance of counsel claims (thatShone failed to demonstrate to the satisfaction of the post-convictioncourt) is the same as the prejudice standard that must be met to excusefor procedural defaults. Prou v. United States, 199 F.3d 37, 49(1st Cir. 1999). I am satisfied with the state court's analysis on thisscore and recommend that the Court deny Shone relief on this claimspursuant to § 2254(b)(2).Page 11


For these reasons I recommend that the Court DENY Shone's28 U.S.C. § 2254 petition.


1. The first motion for revocation had been filed earlier in themonth and alleged other criminal conduct in October, 1999, that hasnothing to do with the motor vehicle episodes that are the basis of thispetition.

2. The State does not concede that this current federal challenge tothe Cumberland County conviction is timely. The State does concede thatif the petition filed in York County on February 23, 2001, served to tollthe applicable statute of limitations on the Cumberland County case aswell as the York County case, then petitioner's plea to this court wouldbe timely. The State refuses to grant this concession as to the federalpetition because Shone was represented by retained counsel throughout thefirst stages of the state post-conviction process and counsel presumablyshould have known better. Section 2244(d)(2) of title 28 excludes fromthe federal one year statute of limitations any time during which "aproperly filed application for State post-conviction or other collateralreview with respect to the pertinent judgment or claim ispending." 28 U.S.C. § 2254(d)(2) (emphasis added); see Artuz v.Bennett, 531 U.S. 4 (2000). 1 think that the rule adopted in theSeventh Circuit relating to these sorts of timeliness concerns can beeasily applied to this case. If the State decides during itspost-conviction process not to enforce its own timeliness rules, andconsiders on the merits a petition that could have been dismissed asuntimely, the petition should be treated as properly filed for purposesof § 2244(d)(2). See Brooks v. Walls, 279 F.3d 518, (7thCir. 2002). Shone was sentenced on the Cumberland County matter on June29, 2000, and never filed an appeal. The "amended" state post-convictionpetition was filed on February 13, 2002, and considered on its merits,obviously treated as timely under the Maine's one-year statute oflimitations. 15 M.R.S.A. § 2128(5). The only way for the petition tobe considered as timely under Maine's statute would have been to allowthe York County petition to toll the limitations period. If the periodwas tolled for purposes of the applicability of the state statute oflimitations, 1 will likewise consider it to have been tolled for thepurposes of § 2244(d)(2).

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