Heon v. RI Attorney Gen.'s Office, CA 12-44 ML
| Decision Date | 25 July 2012 |
| Docket Number | CA 12-44 ML |
| Parties | FREDERICK M. HEON, JR., Petitioner, v. RI ATTORNEY GENERAL'S OFFICE and ASHBEL T. WALL, Respondents. |
| Court | U.S. District Court — District of Rhode Island |
REPORT AND RECOMMENDATION
Before the Court is the State of Rhode Island's Motion to Dismiss "Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. §§ 2241, 2243, and 2254 (Docket ("Dkt.") #5) ("Motion to Dismiss" or "Motion"). The Motion seeks dismissal of the Application for a Writ of Habeas Corpus (Dkt. #1) ("Petition") filed by Frederick M. Heon, Jr. ("Heon" or "Petitioner"). The basis for the Motion is that Heon has failed to exhaust his state court remedies. This matter has been referred to me for preliminary review, findings, and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons stated herein, I recommend that the Motion to Dismiss be granted.
On January 8, 1991, Heon pled nolo contendere in the Providence County Superior Court to Indictment K1/89-700 B which charged him with first degree sexual assault and related offenses stemming from a September 6, 1989, attack on Irene Bassett ("Ms. Bassett").2 See Petitioner's Appendix3 ("P.A."), Ex. 22 at 2(1/8/91 Plea Transcript). For the sexual assault, he was sentenced to twenty-five years with ten years to be served and the balance suspended with probation for fifteen years. Id. at 24-25. He received concurrent sentences of imprisonment and/or suspended sentences for the other offenses.4 See id. at 25.
In recounting events during the nine years following Heon's 1991 sentencing, the Court draws upon the October 6, 2000, Report and Recommendation ("R&R") of Magistrate Judge Robert W. Lovegreen in Frederick M. Heon, Jr. v. George Vose, CA 00-186L ("First Federal Habeas Action" or "First Action"), see P.A., Ex. 6 ("R&R of 10/6/00"). On April 3, 1992, Heon filed the first of several applications5 for post conviction relief ("PCR"), pursuant to R.I. Gen. Laws § 10-9.1-1 through 10-9.1-9, in the Rhode Island Superior Court. See id. at 2. As detailed by Magistrate Judge Lovegreen, the first PCR application was followed by:
an "Amended Application" for PCR on January 7, 1995; a "Supplemental Application" for PCR on February 13, 1995; a "2nd Supplemental Application"6 for PCR on January 19, 1996; a "2nd Amended Application"7 for PCR on March 12, 1996; a Petition for Writ of Habeas Corpus with the Rhode Island Supreme Court on May 3, 1996, which was denied on June 27, 1996; a Motion for Reconsideration on July 8, 1996, denied on July 12, 19968; finally, through counsel, a second "Amended Application"9 for PCR on October 6, 1998.
Judge Lovegreen also recounted the travel associated with these various applications:
On January 17, 1995, Heon requested that the Kent County Superior Court appoint counsel to represent him in his application for PCR. The Department of the Public Defender of Rhode Island ("DPD") refused to represent Heon in his application for PCR by letters dated May 15, 1995, December 28, 1995, and January 4, 1996, because the DPD felt that a conflict of interest existed between their client Richard Fines and Heon, as they were co-defendants in the same case. Furthermore, the DPD did not believe Heon's case "raise[d] issues of substantial merit" and that it had no "significant likelihood of success." On September 13, 1996, Attorney C. Leonard O'Brien entered an appearance in Kent County Superior Court to represent Heon on K1/89-700B and KM 89-1290. Attorney O'Brien also represented Heon "concerning newfelony charges that were brought against him in the spring of 1998 and the State's later attempt to impose the suspended portion of his 1991 sentence."10 In his letter of August 28, 2000, Attorney O'Brien stated: "... I have never sought nor been denied a hearing on a Petition for Post Conviction Relief regarding Mr. Heon."
Id. at 3 (citations omitted)(alterations in original).
On April 13, 2000, Heon filed the First Federal Habeas Action, identifying five issues allegedly warranting relief.11 See id. at 1, 3. First, he appeared to assert a claim of ineffective assistance of counsel based on an alleged failure to call various witnesses who would have presented exculpatory evidence. See id. at 3. Second, he alleged a "panoply of facts culminating in a claim of prosecutorial misconduct." Id. Third, Heon claimed witness perjury and "prosecutorial misconduct again, wherein Heon asserts that the victim in the crime to which he pled had fabricated testimony." Id. Fourth, was "another allegation of prosecutorial misconduct, this time in the form of concealing pertinent and exculpatory evidence from Heon." Id. Fifth, "Heon attests that other pertinent and exculpatory evidence was not disclosed to him, or to his attorney, before his plea." Id.
The petition underlying the First Federal Habeas Action wasdenied without prejudice on November 1, 2000, for failure to exhaust state court remedies. See P.A., Ex. 6 at 7 (First Action, Order of 10/30/00 (accepting R&R 10/6/00)). Heon sought a certificate of appealability from the Court of Appeals, see P.A., Ex. 7 at 1 (), but it was denied, id. at 13 (Court of Appeals Judgment dated 11/2/01). The Court of Appeals "conclude[d] that reasonable jurists could not debate the correctness of the district court's determination that petitioner's state remedies remain effective." Id. at 14. In reaching this conclusion, the Court of Appeals noted that:
The state post-conviction petition filed by counsel had been pending for approximately 18 months when petitioner filed the instant habeas petition, a period of pendency that is not presumptively inordinate under present case law. Morever, the record suggests an explanation for some of the delay: in 1999, petitioner was considering whether to accept a state offer regarding the disposition of unrelated criminal charges in exchange for his withdrawal of the post-conviction petition, and counsel, skeptical whether the post-conviction claims were viable, was continuing to search for supporting legal theories. We have found nothing in the record to suggest that petitioner ever asked counsel to move for a hearing on the pending petition (and the letters of record show that counsel duly responded to communications by petitioner), or that petitioner ever complained to the state court about counsel.
Id. (internal citation omitted).
Heon was released from prison on March 12, 2001. See P.A., Ex. 15 at 3. It appears that no action was taken with respect to Heon's pending application for post-conviction relief until April15, 2004, when it was dismissed for lack of prosecution. See id.; see also id., Ex. 8. Heon indicates that the dismissal occurred without notice to him. See id., Ex. 15 at 3. Heon further indicates that after being released from prison, he sought to obtain counsel utilizing his own financial resources. See id.
On February 26, 2008, Heon's new counsel filed an application for PCR in the state superior court under a new case number, PM-2008-1037, with the same issues as Heon's previous application for PCR but supported by documentation and affidavits "obtained thru [sic] private investigation services." Id.; see also id., Ex. 9 (Application for Post-Conviction Relief Pursuant to R.I.G.L. 10-9.1) at 1. In June 2009, Heon's counsel moved for discovery (depositions). See id., Ex. 15 at 3-4. Thereafter, the State of Rhode Island moved to dismiss the application under the doctrine of laches. Id. at 4. Following a hearing held on January 11, 2010, see id., Ex. 13 (Transcript ("Tr.")of 1/11/10 Hearing), a justice of the superior court granted the State's motion to dismiss, see id., Ex. 12 ().
Heon appealed the dismissal to the Rhode Island Supreme Court which on June 3, 2010, vacated the judgment and remanded the case to the superior court "for a hearing on the issue of laches." Heon v. State, 19 A.3d 1225, 1226 (R.I. 2010). In its order remanding the matter, the state supreme court noted that "the state did not present any evidence in support of its laches argument, and thehearing justice did not make specific findings of fact." Id.
More than nineteen months passed before the hearing ordered by the state supreme court took place on February 2, 2012. At that proceeding the State again did not present any evidence and relied solely upon the argument of its counsel. See Tr. of 2/2/12 Hearing. That attorney asserted that "there is no way the State of Rhode Island can go back and prosecute a case from 1989 at this point in time .... " Tr. of 2/2/12 Hearing at 10.12 As apparent support for this contention, he opined that securing testimony from the attorney who had represented Heon when he pled guilty "would be next to impossible." Id. at 11. Counsel similarly stated that securing testimony from the lead detective in the case, Scott Hornoff ("Hornoff"), "on behalf of the State of Rhode Island would be, I think it's fair to say, that would be impossible at this point ...." Id. Counsel noted that Hornoff had been convicted of murder, served time in prison, and was later exonerated. Id.; see also Hornoff v. City of Warwick Police Department, No. C.A. PC 2003-4264, 2004 WL 144115, at *1 (R.I. Super. Jan. 6, 2004). With respect to Heon's former attorney, Aurendina G. Veiga, the State's counsel indicated that she had subsequently become a magistrate in the state's traffic tribunal but was no longer serving in thatcapacity and was "not even practicing law at this point in time."13 Tr. of 2/2/12 Hearing at 11.
Heon, appearing at the hearing pro se, argued that the State's witnesses, including Hornoff, were available:
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