Mottram v. State

• Decision Date: 19 March 1970
• Citation: 263 A.2d 715
• Parties: Robert H. MOTTRAM v. STATE of Maine et al.
• Court: Maine Supreme Court

Page 715

263 A.2d 715

Robert H. MOTTRAM v. STATE of Maine et al.

Supreme Judicial Court of Maine.

March 19, 1970.

Pierce, Atwood, Scribner, Allen & McKusick, by S. Mason Pratt, Jr., Portland, for plaintiff.

Garth K. Chandler, Asst. Atty. Gen., Augusta, for the State.

Before WILLIAMSON, C. J., and MARDEN, DUFRESNE, WEATHERBEE, and POMEROY, JJ.

WEATHERBEE, Justice.

The matter is an appeal from the dismissal of a petition for the writ of habeas corpus brought under 14 M.R.S.A. § 5502 et seq. in which Petitioner sought to set aside his conviction in 1960 on separate counts one of which charged grand larceny and the other a prior conviction and sentence to the State Prison. As the Single Justice in the Superior Court found that all matters raised as grounds for relief in the petition either had been adjudicated previously, were trial errors not open to collateral review, could reasonably and should have been raised in an earlier petition and were thus waived, it is necessary to examine the exceptional profluence of requests for review which has followed Petitioner's conviction.

Petitioner's original conviction was reviewed and upheld by this Court in 1959. State v. Mottram, 155 Me. 394, 156 A.2d 383.

Later in 1959 a new trial was ordered when on a writ of error coram nobis a Justice of the Superior Court found that the prosecution had allowed to go uncorrected In 1960 Petitioner was retried and again found guilty on both counts. These convictions were sustained by this Court in State v. Mottram, 158 Me. 325, 184 A.2d 225 (1962).

certain testimony of a State witness which it ought to have known was false and that it had misled the defense into believing that certain tape recordings which would have demonstrated the falsity of this testimony were inaudible.

While this appeal was pending, Petitioner filed a petition for habeas corpus in February, 1961 asking a stay in execution of his sentence. This was denied.

In February, 1962, he brought a petition for habeas corpus contending that his sentence was in excess of the statutory maximum for grand larceny. This petition was denied.

In Novemver, 1962 he brought a petition for writ of error coram nobis which contained some of same allegations found in the present petition. This petition was dismissed after a hearing at which Petitioner elected to represent himself and the writ was denied. This decision was sustained by this Court. Mottram v. State, 160 Me. 145,200 A.2d 210 (1964).

On November 15, 1963 Petitioner was released to parole, his sentence having been reduced through exccutive clemency, but on February 12, 1965 he was returned to the prison as a parole violator.

In November, 1965 Petitioner filed a petition for the writ of habeas corpus. Counsel was appointed to assist him. That petition originally alleged several grounds (not found in the present record) which attacked Petitioner's conviction but after conference between Petitioner and his counsel Petitioner's counsel announced that Petitioner elected to assail only the circumstances of his parole violation hearing, although warned by the Single Justice (in a manner to be discussed later) that the statute required that all grounds known to Petitioner must be included in a post-conviction habeas corpus action. Hearing was had, the writ denied, and the judgment of the Justice upheld on appeal. Mottram v. State, Me., 232 A.2d 809 (1967).

The present petition for the writ of habeas corpus was filed in June of 1967. Three competent counsel were appointed in succession to represent Petitioner and an amended petition was finally presented by agreement on March 10, 1969. After amendment, the petition presented the following issues:

1. Whether or not the State knowingly used perjured testimony at the trial, proof thereof being inseparably related to the use of certain tape recordings made during police interrogation of Petitioner and certain witnesses before trial;

2. Whether the State suppressed evidence at trial, this issue being also inseparably related to the use of the tape recordings and knowledge of their contents;

3. Whether the Petitioner was before trial subjected to illegal arrest, transportation, deprivation of right to counsel and right against self- incrimination, these combined issues being related to the interrogation of Petitioner before trial;

4. Whether the Petitioner was tried upon a valid grand jury indictment. (This issue, however, was waived at argument).

5. Whether the State denied Petitioner a fair and impartial trail in that the State's attorney examined the Petitioner at trial with respect to alleged crimes of which he had not been convicted;

6. Whether the State denied Petitioner a fair and impartial trial on the second count of the indictment charging prior conviction and sentence as for a felony by permitting certain jurors who had participated in the separate trial on the first count to sit in the trial of the second count;

7. Whether the Petitioner was denied trial by jury as the result of an answer 8. Whether the State discriminated against Petitioner in proceeding under the 'habitual criminal' statute rather than the 'common thief' statute, in that the former statute is alleged not to have been commonly used in Cumberland County; and in that Petitioner was 'informed' that the Presiding Justice had sent word before trial that Petitioner 'was only adding years to the sentence by insisting on pleading not guilty and forcing a trial', thus disclosing bias and prejudice;

given by the Presiding Justice to a question propounded by a juror;

9. Whether or not the 'habitual criminal' statute (which was at the time of trial R.S.1954, Ch. 149, Sec. 3) was unconstitutional in that it penalized a 'status' rather than a criminal offense, was void for vagueness, and provided cruel and unusual punishment by permitting a sentence for 'any term of years'.

The Respondents moved to dismiss asserting that all these complaints had either been adjudicated or waived in the course of prior litigation. There were introduced as exhibits all prior petitions of Petitioner as amended (except those which were withdrawn before being acted upon), the Court's decrees and portions of the testimony taken during the various hearings. The Single Justice granted the motion to dismiss and he appointed counsel to represent Petitioner in his appeal from the Justice's decision.

The Single Justice found that Petitioner's allegations did not entitle him to relief because

'1. Some allege mere trial errors not open to collateral review, or allege matters devoid of merit upon their face.

'2. Some allege matters which have finally been adjudicated in prior proceedings.

'3. All others allege matters which have been effectively waived by the conduct of the petitioner.'

Particularly, the Justice found that all the claims of error made now by Petitioner were known to Petitioner on March 30, 1966, which was the time of hearing on the 1965 petition, and could reasonably have been raised then and that those which had previously been adjudicated were no longer available to him as a result of the operation of 14 M.R.S.A. §§ 5502 and 5507.

Our post-conviction habeas corpus statute (14 M.R.S.A. § 5502 et seq.) became effective on September 21, 1963. It provides a single, exclusive remedy for all collateral attacks on judgments of conviction. Green v. State, Me., 245 A.2d 147, supplemented 247 A.2d 117 (1968); Mottram v. State, Me., 232 A.2d 809, supra. Sections 5502 and 5507 create a statutory bar to repetitious petitions which is in the nature of res judicata. They read:

' § 5502. Post-conviction habeas corpus.

Any person convicted of a crime and incarcerated thereunder including any person committed as a juvenile offender, of released on probation, or paroled from a sentence thereof, or fined, who claims that he is illegally imprisoned, or that there were errors of law of record, or that his sentence was imposed in violation of the Constitution of the United States or of this State, or that there were errors of fact not of record which were not known to the accused or the court and which by the use of reasonable diligence could not have been known to the accused at the time of trial and which, if known, would have prevented conviction, may institute a petition for a writ of habeas corpus seeking release from an illegal imprisonment, correction of an error of law of record, or to set aside the plea, conviction and sentence, provided that the alleged error has not been previously or finally adjudicated or waived in the proceeding resulting in the conviction or in any other proceeding that the petitioner has taken to secure relief from his conviction.

The remedy of habeas corpus provided in sections 5502 and 5508 is not a substitute for nor does it affect any remedies which are incidental to the proceedings in the trial court, or any remedy of direct review of the sentence or conviction but, except as otherwise provided in sections 5502 to 5508, it comprehends and takes the place of all other common law remedies which have heretofore been available for challenging the validity of a conviction and sentence and shall be used exclusively in lieu thereof. A petition may be filed at any time after the criminal conviction is final.

§ 5507. Waiver of grounds not claimed; effect of prior petition of coram nobis or error

All grounds for relief claimed by a petitioner under this remedy must be raised by a petitioner in his original or amended petition, and any grounds not so raised are waived unless the State or Federal Constitution otherwise requires or any justice on considering a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition. A petitioner who has previously entered a petition under the Revised Statutes of 1954, chapter 126-A or under chapter 129, sections 11 and 12 shall not be granted the writ under this remedy unless the...