Opinion
PISCD-CR-19-17
07-08-2019
IENRY MURDOCH, Petitioner v. STATE OF MAINE Respondent
ORDER
Kevin L. Stitham Judge, Maine UCD
Petitioner Henry Murdoch filed a petition for post-conviction review on January 15, 2019, claiming he has been incarcerated longer than he expected to be Petitioner was sentenced on the underlying conviction on November 6, 2017. On April 29, 2019 the State represented by Assistant District Attorney Christopher Almy filed a motion to dismiss the petition for failure to timely file the claim, pursuant to 15 M.R.S.A. § 2128-B. Attorney Jeffrey Toothaker representing Petitioner filed a response to the State's motion to dismiss on June 03, 2019. At Attorney Toothaker's request, a telephone conference was held on June 10, 2019 at which time Attorney Toothaker requested an evidentiary hearing to demonstrate why Petitioner did not timely file his post-conviction review petition. The evidentiary hearing was held on July 1, 2019. After careful review of the record including transcripts of the October 2, 2017 Rule 11 hearing the November 6, 2017 sentencing hearing, testimony at the July1, 2019 evidentiary hearing the applicable law, and for the foregoing reasons the Court GRANTS the State's Motion to Dismiss.
"A one year period of limitation applies to initiating a petition for post-conviction review seeking relief from a criminal judgment....." 15 M.R.S.A. § 2128-B. Petitioner's conviction was entered onto the docket on November 6, 2017 after which time he was entitled to twenty-one days to file a notice of appeal. M.R. App. P. 2B(b)(1). Therefore the one year period of limitation for filing a petition for post-conviction review began tolling on November 28, 2017 and expired on November 28, 2018. Petitioner did net file his post-conviction review petition until January 19, 2019.
At the evidentiary hearing, Petitioner was afforded the opportunity to demonstrate why the period of limitations should be extended to begin en ''[t]he date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.'' 15 M.R.S.A.§ 2128-B(1)C).
Petitioner's argument that his petition was timely filed is largely based on his explanation that he did not understand the length of his term of imprisonment and that he ''agreed to 26 months[, ] no more no less'' when he accepted the plea agreement on the underlying charges. Counsel for Petitioner argues that the standard for evaluating timeliness of petitions should be based upon what a reasonable defendant should be expected to understand. Despite Petitioner's desire to leave the Department of Corrections' facilities the standard he seeks to apply to the timeliness of his petition is misplaced.
Sec Petitioner's letter to the Court dated May 11, 2019 received and filed on June 3, 2019.
While "[p]etitioner may have lacked the legal acumen be determine grounds for a postconviction review petition or even that these petitions are bound by time restraints. Petitioner could have obtained copies of important court documents [within the applicable time period]... ." Burro v. State, 2007 Me.Super. LEXIS 68 at *7 (Mar. 28, 2007). Further testimony at the evidentiary hearing from both Petitioner and Probation Officer Cooper demonstrated that while he is in the custody of DOC, Petitioner receives notifications of his expected release date from the Department of Corrections at least quarterly. Accordingly Petitioner was put on notice more than once of his expected release date by the Department of Corrections far prior to the expiration of the time period to file a petition for post-conviction review. Lastly Petitioner was present at his sentencing when J. Stitham, Petitioner's attorney Christopher Smith, Esq., and Probation Officer Cooper discussed when the Petitioner would probably be released (September of 2019) in terms of scheduling his payments to the Court on his surcharges and Petitioner was directly addressed by J. Stitham about the specific date to start his payments (November of 2019).
The Court agrees with the State that the Petitioner could have with due diligence discovered the factual predicate to his claims before November 28, 2018. "M, R. Crim. P. 70(e) mandates a dismissal of the proceeding until the petitioner establishes good cause for delay." Harris v. State, 1999 ME 61, ¶ 8, 729 A.2d 351. "Although MR. Crim. P 70(e) affords the petitioner an opportunity to make a showing of good cause, the rule requires the dismissal of the action in the absence of such a showing even under circumstances in which dismissal might seem unfair to the petitioner," Id. In this case Petitioner has not demonstrated any reason for untimeliness beyond alleging he couldn't reasonably be expected to know the length of his sentence. Petitioner has certainly not demonstrated good cause for failure to timely file his postconviction review petition. Because the court finds the Petitioner did not timely file his postconviction review petition and has not demonstrated good cause for failure to do so the Court need not address the merits of Petitioner's claim. Pursuant to M.R. Crim. P. 70(b)(3), the Court shall enter a summary dismissal if there has been a failure to adhere to the filing deadline under 15 M.R.S. § 2128-B and Petitioner has failed to demonstrate due diligence. Accordingly the Court GRANTS the State's motion to dismiss.