Mottram v. Murch

• Citation: 330 F. Supp. 51
• Decision Date: 05 August 1971
• Docket Number: Civ. No. 11-138.
• Parties: Robert H. MOTTRAM, Petitioner, v. Frank F. MURCH, as he is Sheriff of Piscataquis County in the State of Maine et al., Respondents.
• Court: U.S. District Court — District of Maine

330 F. Supp. 51

Robert H. MOTTRAM, Petitioner, v. Frank F. MURCH, as he is Sheriff of Piscataquis County in the State of Maine et al., Respondents.

Civ. No. 11-138.

United States District Court, D. Maine, S. D.

August 5, 1971.

COPYRIGHT MATERIAL OMITTED

S. Mason Pratt, Jr., Portland, Me., for petitioner.

Garth K. Chandler, Asst. Atty. Gen., Augusta, Me., for respondents.

MEMORANDUM OF OPINION AND ORDER OF THE COURT

GIGNOUX, District Judge.

This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 et seq. The petitioner, Robert H. Mottram, was originally convicted, following jury trial, at the January 1958 term of the Cumberland County, Maine Superior Court on both counts of an indictment charging him, in the first count, with larceny of an automobile, Me.Rev.Stat. ch. 132, § 1 (1954), as amended, 17 M.R. S.A. § 2101, and in the second count, with previously having been convicted of a felony and sentenced to the Maine State Prison, Me.Rev.Stat. ch. 149, § 3 (1954), as amended, 15 M.R.S.A. § 1742 (Maine's habitual offender statute). On appeal, the Supreme Judicial Court of Maine affirmed his conviction. State v. Mottram, 155 Me. 394, 156 A.2d 383 (1959). Subsequently, however, in September 1960, on a writ of error coram nobis, a Superior Court justice vacated the judgment of conviction and ordered a new trial because the prosecution had allowed to go uncorrected certain testimony of a State witness which it ought to have known was false and because the State had misled the defense into believing that certain disc recordings which would have demonstrated the falsity of the testimony were inaudible. At the October 1960 term of the Cumberland County Superior Court, petitioner was retried and again found guilty on both counts. He was sentenced to the Maine State Prison for a term of 10 to 30 years, but in June 1963 his sentence was commuted to a term of four years and two months to 20 years. On appeal, the Supreme Judicial Court affirmed his second conviction. State v. Mottram, 158 Me. 325, 184 A.2d 225 (1962).

The present petition is the culmination of petitioner's persistent efforts over a 10-year period to obtain a review of his 1960 conviction by state and federal courts. Relevant to the instant case are the following prior proceedings¹:

(1) In November 1962 he filed a petition for writ of error coram nobis in the Cumberland County Superior Court, which included many of the same allegations contained in the present petition. On May 20, 1963 the single justice dismissed this petition, without hearing, on the ground that coram nobis was not the proper remedy. On May 8, 1964 the Supreme Judicial Court affirmed. Mottram v. State, 160 Me. 145, 200 A.2d 210 (1964).

(2) In November 1965, having been previously released on parole but returned to prison as a parole violator, petitioner filed with the Cumberland County Superior Court a petition for post-conviction habeas corpus relief under the provisions of 14 M.R.S.A. § 5502 et seq. challenging the procedures followed by the Parole Board in revoking his parole. Counsel was appointed to represent him. At the hearing on this petition, petitioner made clear that he was not attacking the conviction itself, even though the presiding justice specifically warned him and his attorney that his failure to do so might constitute a waiver of his right to attack his conviction in subsequent post-conviction proceedings. The writ was denied, after hearing, on April 21, 1966, and on August 21, 1967, the Supreme Judicial Court affirmed. Mottram v. State, 232 A.2d 809 (Me.1967).

(3) After the hearing on his 1965 petition, but before the decision was announced, petitioner filed on April 13, 1966 a habeas corpus petition in this Court alleging many of the grounds presented in his present petition. This petition was denied, without hearing, for failure to exhaust state remedies. Mottram v. Robbins, Civil No. 9-42 (D. Me., June 14, 1966) (unreported). A certificate of probable cause for appeal from this decision was denied by the Court of Appeals, Mottram v. Robbins, Misc. No. 181 (1st Cir., Aug. 11, 1966), and the Supreme Court denied certiorari. Mottram v. Robbins, 388 U.S. 922, 87 S.Ct. 2122, 18 L.Ed.2d 1370 (1967).

(4) In June 1967 petitioner filed with the Cumberland County Superior Court a second petition for post-conviction habeas corpus relief under 14 M.R.S.A. § 5502 et seq., this time directly attacking his 1960 conviction. Counsel was appointed to represent him and an amended petition was filed in March 1969 alleging grounds substantially identical to those raised in the petition presently before this Court. On April 15, 1969 the single justice dismissed the petition, without an evidentiary hearing, on the grounds that (a) some of petitioner's allegations alleged mere trial errors not open to collateral review or were devoid of merit upon their face; (b) some alleged matters which had finally been adjudicated in prior proceedings; and (c) all others alleged matters which had been effectively waived by petitioner's failure to present them in support of his 1965 petition. On March 19, 1970 the Supreme Judicial Court affirmed. Mottram v. State, 263 A.2d 715 (Me.1970).

Petitioner, having been once again released on parole, but presently incarcerated in the Piscataquis County jail because of charges unrelated to his 1960 conviction, filed the present petition in this Court on June 11, 1970. By order dated June 26, 1970, he was granted leave to proceed in forma pauperis and counsel was appointed to represent him throughout these proceedings. On October 5, 1970 an amended petition was filed alleging grounds substantially identical to those raised in his most recent petition for post-conviction relief in the Maine courts. In his amended petition, petitioner asserts that his 1960 conviction was obtained in violation of his Fourteenth Amendment rights to Due Process and Equal Protection of the Law by reason of the following:

A. The State's knowing use of perjured testimony at his trial.

B. Illegal arrest and transportation, deprivation of right to counsel, and violation of privilege against self-incrimination.

C. Denial of fair and impartial jury and violation of privilege against self-incrimination.

D. Denial of trial by jury.

E. Bias of the trial judge.

F. Unconstitutionality of the habitual offender statute.

G. Denial of fair and impartial trial.

H. Denial of Equal Protection by selective enforcement of the habitual offender statute.

The State concedes that because petitioner remains subject to the restraints of his parole from the sentence imposed upon his 1960 conviction, this Court has jurisdiction to entertain his habeas corpus petition under 28 U.S.C. § 2254(a). Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); see Nelson v. George, 399 U.S. 224, 90 S.Ct. 1963, 26 L.Ed.2d 578 (1970); Peyton v. Rowe, 391 U.S. 54, 67, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); Desmond v. United States Board of Parole, 397 F.2d 386, 389 (1st Cir.), cert. denied, 393 U.S. 919, 89 S.Ct. 249, 21 L.Ed.2d 206 (1968). The State also concedes that petitioner has exhausted his available state remedies as required by 28 U.S.C. § 2254(b). The State strenuously contends, however, that petitioner has waived the grounds asserted by him in support of his present petition because of his failure to raise them in his 1965 state habeas corpus proceeding, and that, in any event, his allegations are without merit.

After hearing counsel, the Court on December 23, 1970 ordered an evidentiary hearing on the waiver issue in order that petitioner might be provided the opportunity to show that his failure to assert his present contentions in the 1965 proceeding was not a voluntary and intentional relinquishment of a known right or a deliberate bypassing of orderly state procedures under the principles set forth by the Supreme Court in Fay v. Noia, 372 U.S. 391, 438-439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Johnson v. Zerbst, 304 U.S. 458, 464-465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The Court also, observing that petitioner had never received a determination of the merits of his claims by any state or federal court, ordered a full evidentiary hearing on the factual issues presented by his allegations. See Townsend v. Sain, 372 U.S. 293, 312-318, 83 S.Ct. 745, 9 L.Ed. 2d 770 (1963); cf. 28 U.S.C. § 2254(d). Such an evidentiary hearing was held on March 17, 18, 29 and 31, 1971. At the hearing there was received in evidence, by agreement, all relevant state court records, including the complete transcripts of petitioner's 1958 and 1960 trials, the complete record of his most recent state habeas corpus proceeding, selected portions of the records of his prior state post-conviction proceedings, and a transcript of the audible portions of a disc recording of his interrogation by Maine State Police officers on January 28, 1958. Additionally, petitioner presented the testimony of the county attorney who had presented the state's case at petitioner's 1960 trial, his own testimony, and the testimony of four Maine State Police officers who had conducted the investigation in December 1957 and January 1958 which led to petitioner's subsequent prosecution. Respondents presented no testimony other than that elicited on cross-examination of the witnesses called by petitioner.

After a careful consideration of the entire record and the written and oral arguments of counsel, the Court finds that petitioner has wholly failed to establish that he is in custody in violation of the Constitution or laws or treaties of the United States, 28 U.S.C. § 2254(a), and that petitioner is therefore not entitled to the issuance of the writ, for the following reasons:

I

The Waiver Issue

For a proper understanding of the waiver issue presented by this case, it is necessary to review briefly the provisions of the Maine post-conviction habeas corpus statute, 14 M.R.S.A. § 5502 et seq., and the record of ...