RECOMMENDED DECISION ON RESPONDENT'S MOTION TO DISMISS AND PETITION FOR WRIT OF HABEAS CORPUS
The petitioner seeks a writ of habeas corpus pursuant to28 U.S.C. § 2254 in connection with his conviction in the MaineSuperior Court (Piscataquis County) on charges of robbery,aggravated assault and violation of conditions of release, inviolation of 17-A M.R.S.A. §§ 651and 208 and 15 M.R.S.A. § 1092.The petitioner simultaneously filed with his petition a motionfor leave to file an amended petition, after his secondpost-conviction proceeding, then pending in state court, hadconcluded. Docket No. 2. The respondent moved to dismiss thepetition as initially filed. Respondent's Motion to Dismiss, or,in the Alternative, Answer to Petition for Writ of Habeas Corpus,etc. ("Motion") (Docket No. 6) at 1. I granted the petitioner'smotion for leave to file an amended petition. Docket No. 14. Anamended petition was duly filed. Amended-Supplemental Pleading("Amended Petition"), Docket No. 15. The respondent has moved todismiss that petition as well. Respondent's Motion to Dismiss,or, in the Alternative, Answer to Amended Petition, etc. ("Amended Response") (Docket No. 16). Irecommend that the court deny the petitions on the merits.
I. Procedural Background
On December 15, 1994 a grand jury in Somerset County indictedthe defendant on counts of robbery, aggravated assault andviolation of a condition of release, in violation of 17-AM.R.S.A. §§ 651 and 208 and 15 M.R.S.A. § 1092. Indictment,State of Maine v. Michael Thompson, Maine Superior Court(Somerset County), Docket No. CR-94-658. A motion for change ofvenue was granted. Docket, State of Maine v. Michael Thompson,Maine Superior Court (Somerset County), Docket No. CR-94-658, at4; Docket, State of Maine v. Michael Thompson, Maine SuperiorCourt (Piscataquis County), Docket No. CR-98-03, at 1. After ajury trial on the first two counts and a bench trial on the thirdcount, the defendant was found guilty on all counts. Judgment andCommitment, State of Maine v. Michael Thompson, Maine SuperiorCourt (Piscataquis County), Docket No. CR-98-3. He was sentencedto concurrent terms of forty years on Count I and ten years onCount II and a consecutive term of five years on Count III. Id.The defendant's appeal to the Maine Law Court was denied, as washis application for leave to appeal his sentence. State v.Thompson, Dec. No. Mem 99-29 (Maine Mar. 1, 1999).
The defendant filed a petition for post-conviction review instate court on May 30, 2001. Docket, Michael Thompson v. Stateof Maine, Maine Superior Court (Somerset County), Docket No.SKOSC-CR-2001-00214. The petition asserted that the state's"practice in not requiring the jury to return a specific verdict"violated the federal and state constitutions, that he receivedconstitutionally insufficient assistance of counsel at trial andon appeal and that the jury instructions were constitutionallydeficient. Petition for Post Conviction Review and Relief,Michael Thompson v. State of Maine, Maine Superior Court(Piscataquis County) [sic], Docket No. [CR-01-214] ("State Post-ConvictionPetition"), at -. A "supplemental petition" filed in thestate court by the defendant asserted that his sentencingviolated Apprendi v. New Jersey, 530 U.S. 466 (2000).Supplemental Petition for Post-Conviction Review, MichaelThompson v. State of Maine, Maine Superior Court (PiscataquisCounty) [sic], Docket No. CR-94-658 [sic] ("Supplemental StatePetition"), at 1. Following an evidentiary hearing, the petitionwas denied. Order, Michael Thompson v. State of Maine, MaineSuperior Court (Somerset County), Docket No. CR-01-214 (Feb. 2,2004) ("Post-Conviction Order") at 11. At that hearing, counselfor the defendant confirmed that the only issues being pursued bythe defendant on the petition involved Apprendi and allegedintimidation of a witness. Transcript, Post-Conviction Review,Michael Thompson v. State of Maine, Docket No. CR-01-214("Transcript"), at 6; see also Post-Conviction Order at 3-11.The defendant's request for a certificate of probable cause toproceed with an appeal from this decision was denied by the LawCourt. Order Denying Certificate of Probable Cause, MichaelThompson v. State of Maine, Maine Supreme Judicial Court sittingas the Law Court, Docket No. Som-04-145 (May 7, 2004).
The petitioner filed a second petition for post-conviction instate court on June 16, 2004. Petition for Post-ConvictionReview, Michael Thompson v. State of Maine. Maine SuperiorCourt (Somerset County), Docket No. CR-04-166 ("Second StatePetition") (included in Docket No. 19); Order to SummarilyDismiss Post-Conviction Petition, Michael Thompson v. State ofMaine, Superior Court (Somerset County), Docket No. CR-04-166("Second Post-Conviction Order") (included in Docket No. 19), at2. The Superior Court dismissed this petition by order datedAugust 2, 2004. Second Post-Conviction Order at 3. A certificateof probable cause to allow the petitioner's appeal from thisdismissal was denied by the Maine Law Court on December 22, 2004.Docket, Michael Thompson v. State of Maine, Maine SuperiorCourt (Somerset County), Docket No. SKOSC-CR-2004-00166. After the respondent filed his response to the amendedpetition, which includes a motion to dismiss the amendedpetition, the petitioner filed a document entitled "Motion toStrike Motion to Dismiss," addressed to the respondent'spleading. Motion to Strike Motion to Dismiss (Docket No. 17). Thepetitioner presents no colorable reason for striking theresponsive pleading. The motion to strike is denied.
The order granting the petitioner's motion for leave to file anamended petition in this proceeding directed that the amendedpetition include "any and all issues raised in [the] secondstate-court post-conviction relief proceeding that [thepetitioner] wishes this court to consider." Order on Motion andProcedural Order (Docket No. 14) at 2. The "amended" petitionfiled by the petitioner in this action contends that theindictment in the underlying state criminal proceeding wasinvalid and that the sentence imposed by the state court wasbeyond that court's authority. Amended-Supplemental Pleading(Docket No. 15) at -. The first of these two issues was notraised in the second state-court post-conviction reliefproceeding. Second State Petition at - & Memorandum inSupport of Second Post Conviction Review Appeal Petition,Michael Thompson v. State of Maine, Maine Superior Court(Somerset County), Docket No. CR-04-214 [sic] (included in DocketNo. 19) at 1-3. By the terms of my procedural order, and becauseany such claim has been procedurally defaulted, that claim cannotbe considered in this proceeding. Adelson v. DiPaola,131 F.3d 259, 261 (1st Cir. 1997). The second issue raised in the amendedpetition was presented in the initial petition as the first claimand will be discussed below.1 The respondent contends that most of the issues asserted by thepetitioner are procedurally defaulted. Motion at 5-10; AmendedResponse at 2-4. The statute governing the relief sought by thepetitioner provides, in relevant part: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.28 U.S.C. § 2254(b)(1). There is no suggestion in the record ofthis case that the state has not made corrective processavailable to this defendant or that the available process isineffective to protect his rights.
The governing statute also provides, in relevant part: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of that claim — (1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. (e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(d) & (e)(1).
The initial pro se petition in this case presents fourgrounds for relief, all of which are entitled "IneffectiveAssistance of Counsel." Petition Under 28 USC § 2254 for Writ ofHabeas Corpus by a Person in State Custody ("Petition") (DocketNo. 1) at 5-6. As the respondent points out, Motion at 5, noclaim of ineffective assistance of counsel was pursued by thepetitioner in his post-conviction proceeding in state court or inhis direct appeal to the Law Court from his conviction, Brief ofthe Appellant Michael Thompson, State of Maine v. MichaelThompson, Law Docket No. PIS-980134 ("Law Court Brief") at xix.Accordingly, any such claim is procedurally barred in thisaction. Adelson 131 F.3d at 261. "[A] habeas petitioner bears aheavy burden to show that he fairly and recognizably presented tothe state courts the factual and legal bases of [his] federalclaim[s]." Id. at 262. In his reply brief, the petitionerstates that casting his claims as asserting ineffectiveassistance of counsel "was a[n] error." Objection to State['s]Motion to Dismiss — OR — Reply to State[']s Answer ("Reply")(Docket No. 12) at 1. Because the substance of each claim in thepetition as it is set forth following the "ineffectiveassistance" title makes clear that the claims are not actuallybased on that theory, I will address the substance rather thanthe title of each claim.
The respondent also contends that any claims that were raisedin the petitioner's direct appeal to the Law Court have beenprocedurally defaulted because in that action the petitioner did"not specify that he [was] asserting a federal constitutionalviolation, as opposed to a state constitutional violation."Motion at 6 (emphasis in original); Amended Response at 3-4. Itis quite clear that the petitioner asserted a federalconstitutional ground for the first issue he raised on his directappeal, Law Court Brief at 1-6, but that issue is not raised inhis petition for habeas corpus relief. The second issue raised bythe petitioner in his direct appeal is presented as the firstissue in the current petition. Id. at 7-9; Petition at 5. Thepresentation of that issue to the Law Court cited only state law and cannot reasonablybe read to alert the Law Court to the presence of a federalclaim. See Baldwin v. Reese, 541 U.S. 27, 124 S.Ct. 1347,1349-51 (2004). Moreover, it was not included in the petitioner'srequest for post-conviction relief from the state court. It hastherefore been procedurally defaulted. Id. at 1351; see alsoCormier v. State, 2004 WL 2315275 (D. Me. Oct. 13, 2004), at *4.
Grounds two and three of the petition were not raised in thepetitioner's direct appeal and count two was not raised in hispetition for post-conviction relief. State Post-ConvictionPetition at 6-17; Supplemental State Petition at -.Accordingly, ground two has been procedurally defaulted as well.Ground three was waived by the petitioner at the hearing on hispetition for post-conviction relief, Transcript at 6, andtherefore has also been procedurally defaulted.
The fourth and final claim in the initial petition2provides: Co-Defendant Cory Trial was set to testify for Michael Thompson to establish and admit that he (Trial) was in fact the person who committed the assault on the victim[. B]efore he was to testify two detective?s threatened and intim[i]dated Trial under instruction and in front of the District Attorney (see Post Conviction Review evidentiary hearing transcript).Petition at 6. This issue was addressed in the statepost-conviction proceeding. Post-Conviction Order at 8-11. It hastherefore been properly exhausted. Ordinarily, the presence of unexhausted and exhausted claims ina petition for relief under section 2254 requires the federalcourt to dismiss the entire petition. Rose v. Lundy,455 U.S. 509, 510 (1982). However, the respondent in this case does notseek dismissal on this basis. Rather, he addresses the merits ofthe sole exhausted claim. Motion at 9-11.
The state post-conviction relief court addressed this issue asfollows: One of the issues at trial was whether Thompson had stabbed Fortin and left him for dead or whether Cory Trial, another participant in the robbery, had stabbed Fortin without Thompson's knowledge. At trial the defense called Trial, who had already been convicted of robbery in connection with the incident and who had received a 20-year sentence, as a witness. Initially, at a brief hearing outside the jury's presence, Trial was asked if he was willing to answer questions and responded affirmatively. Once he began his testimony before the jury and was asked if he had had an altercation with Fortin or had hit Fortin, Trial stated that he could not answer. A conference then ensued on the record but outside of the jury's presence in which Trial stated that the reason he was not willing to answer was that he was concerned about incriminating himself. In the subsequent discussion, the prosecutor stated that because Trial had already pled guilty and been sentenced on the robbery charge and because the aggravated assault charge had been dismissed against Trial at that time, "I don't think there's any possible way under the law that he can be recharged for the crime of aggravated assault or anything else involving the actual incident that took place that evening." [The trial judge] endorsed this statement. Thereafter Trial stated that he was prepared to answer questions. When the court asked him whether he understood what the prosecutor had said, Trial stated, "Yep, I won't get charged." Before the jury, Trial then testified that he was the person who hit Fortin, that he might have lost control, and that when Fortin was hit, Trial believed Thompson was in the car. Trial further testified that when he hit Fortin, he had the knife in his hand and if Fortin was stabbed, "I'm the one that did it." After Thompson's conviction, on his motion for a new trial, Thompson offered evidence that before Trial testified at trial, he had been visited by a current State Police detective and a former State Police detective and that the former had informed Trial that if he were to testify that he had stabbed Fortin, he would face another prosecution for aggravated assault despite his robbery plea. Trial testified at the hearing on the new trial motion that he had been intimidated in his trial testimony by what the detective had told him. At the post-conviction hearing in this case on October 17, 2003, Trial essentially repeated the same testimony. The court does not find that Thompson is entitled to post-conviction relief based on the alleged intimidation of Cory Trial for a number of reasons. First, [the trial judge] heard all the same evidence on the motion for new trial and denied the motion. [The trial judge] concluded that the detective's actions prior to Trial's testimony were, charitably stated, "unfortunate." However, she noted that it had been explained to Trial in the courtroom that he could not be reprosecuted and that he had thereafter stated he was willing to answer questions. In this connection, it bears emphasis that on Thompson's direct appeal, the law Court concluded that the trial court did an "exemplary" job of explaining how unlikely it was that Trial would be charged with a further crime based on his testimony at trial. In this post-conviction proceeding Thompson has not articulated how the Cory Trial issue would entitle him to post-conviction relief. . . . * * * . . . First, any taint that could have been caused by the trooper's actions was dispelled when it was explained to Trial that he could not be reprosecuted and he stated that he understood. Second, Cory Trial in fact testified before the jury that he and not Michael Thompson had been the person who was responsible for stabbing Eugene Fortin. Under these circumstances the court cannot find that the inappropriate actions of the State police detective had any effect on the trial. Third, although Thompson has consistently argued that [the trial judge's] 40 year sentence was premised on her belief that Thompson stabbed Eugene Fortin, the sentencing transcript does not support this argument. Instead, [the trial judge] stated that her sentence was based on Thompson's prior record and on his role in a horrific robbery and aggravated assault, "whether as an accomplice or a principle [sic]." [The trial judge] nowhere stated that she concluded that Thompson actually wielded the knife that stabbed Eugene Fortin, and therefore the court cannot find that this issue resulted in any prejudice to Thompson for post-conviction purposes. Without excusing the actions of the State police detective who suggested to Trial that he could still be prosecuted for aggravated assault if he testified in support of Thompson at trial, those actions were fully aired prior to the direct appeal and furnish no basis for post-conviction relief.Post-Conviction Order at 8-11 (citations omitted). The petitionerdoes not suggest in his submissions to this court how the"intimidation" of Trial prejudiced him under the circumstances,let alone how the state post-conviction court's treatment of thisissue resulted in a decision that was contrary to, or involved anunreasonable application of, clearly established federal law, asdetermined by the Supreme Court of the United States; or resultedin a decision that was based on an unreasonable determination ofthe facts in light of the evidence presented in the state courtproceeding. 28 U.S.C. § 2254(d). The petitioner presents noevidence whatsoever to suggest that the state court's factualdeterminations concerning Trial were unreasonable. He cites nofederal law, and I am aware of none, that would contravene thestate post-conviction court's treatment of this claim. From allthat appears, Trial, after being assured that the detective'sthreats were groundless, testified that he, not Thompson, wieldedthe knife that injured the victim. The defendant could notpossibly have been harmed by that testimony.3 Nor was hedenied the opportunity to present Trial's exculpatory testimony.
IV. Conclusion For the foregoing reasons, I deny the petitioner's motion tostrike and recommend that the petition for a writ of habeascorpus be DISMISSED without a hearing.
1. The Maine Superior Court justice who dismissed the secondstate-court petition noted that the second petition "rais[ed] thesame issues? which were addressed in [the petitioner's] previouspetition for post-conviction relief." Second Post-ConvictionOrder at 2.
2. After stating the fourth ground for relief, the petitionerwrote "For further grounds see attached documents." Petition at6. No documents were attached to the petition and thepetitioner's reply does not refer to any issues other than thefour presented in the petition itself. The petitioner's replydoes appear to argue the Apprendi issue which was pursued inhis state post-conviction proceeding, Reply at 4, 7-9, but thatground is not asserted in his initial petition and may not beraised by way of a reply memorandum. Ardolino v. Warden,223 F.Supp.2d 215, 234 n. 10 (D. Me. 2002). The respondent construesthe amended petition as asserting an Apprendi claim. AmendedResponse at 5-6. I do not discern such a claim, see AmendedPetition at -], but to the extent that the amended petitionshould be so construed, Apprendi does not apply retroactively,Gerrish v. United States, 353 F.Supp.2d 95, 96-97 (D. Me.2005). The petitioner's sentence was imposed before the decisionin Apprendi was announced. Docket, State of Maine v. MichaelThompson, Maine Superior Court (Piscatquis County), Docket No.CR-98-03, at  (sentence imposed on March 5, 1998); Apprendiv. New Jersey, 530 U.S. 466, 466 (2000) (decided June 26,2000).
3. In a footnote, the state post-conviction judge noted that Thompson argues that Trial was less convincing in his testimony before the jury because of the State police intimidation. The court has no basis to reach that conclusion. It is true that the jury may not have found Trial credible, but the State has argued throughout that Trial's testimony, both at trial and at the hearing on the motion for a new trial, was not credible for other reasons. Specifically, the State contends that throughout his testimony, Cory Trial has been motivated by his fear of Michael Thompson rather than by any fear of reprosecution. Notable, this court did not find Trial's testimony at the post conviction hearing on October 17, 2003 — that he thought he could still be charged when he testified at trial — was credible given his clear statement at the time that he understood the prosecutor's position ("Yep, I won't be charged").Post-Conviction Order at 10 n. 5. This conclusion regardingTrial's credibility is fully supported by the state-courtrecord.