Nerval v. Maine
| Decision Date | 14 October 2020 |
| Docket Number | 1:20-cv-00122-JAW |
| Parties | DOMINIC NERVAL, Petitioner, v. STATE OF MAINE, Respondent |
| Court | U.S. District Court — District of Maine |
Petitioner, pursuant to 28 U.S.C. § 2254, seeks relief from a state court conviction and sentence. (Petition, ECF No. 1.) Petitioner argues the State withheld evidence favorable to Petitioner in violation of his due process rights, among other claims. (Petition at 10.) The State asks the Court to dismiss the petition. (Response, ECF No. 8.)
After a review of the section 2254 petition, the State's request for dismissal, and the record, I recommend the Court grant the State's request and dismiss the petition.
Petitioner was arrested on August 1, 2014, in the Auburn, Maine apartment of Jessica Goodwin. (State v. Nerval, Me. Super. Ct., AUBSC-CR-2014-00789, Trial Transcript at 119-23.) In October 2014, Petitioner was indicted on two counts of aggravated drug trafficking. (State v. Nerval, Me. Super. Ct., AUBSC-CR-2014-00789, Docket Record at 2.) A jury trial was held in March 2016. (Id. at 7.) Petitioner's attorney made several requests for all the physical evidence in the case shortly after his arrest and several days before trial.
At trial, Maine DEA Agent Nicholas Gagnon testified that he had received information from a member of a drug treatment court suggesting that drug trafficking was occurring in Jennifer Goodwin's apartment. (Trial Transcript Vol. I at 104-05.) On July 29, 2014, Agent Gagnon went to the apartment to investigate. (Id. at 105.) According to Agent Gagnon, Ms. Goodwin—after deciding to cooperate to avoid a penalty at drug court—admitted to drug dealing, showed Agent Gagnon text messages she had sent to customers, and told Agent Gagnon the drugs came from someone named DJ. (Id. at 105-06, 110-11.) Agent Gagnon also explained that Ms. Goodwin made a phone call to DJ, which call Agent Gagnon monitored, and DJ implied that he would be back on August 1 with more drugs. (Id.) On August 1, Ms. Goodwin informed Agent Gagnon that DJ had returned with additional drugs and gave Agent Gagnon permission to enter and search the apartment. (Id. at 81.)
Agent Gagnon and two other agents knocked on the apartment door, and Petitioner opened the door. (Id. at 36-37.) According to two of the agents, Petitioner appeared to step backward or to turn to flee into the apartment; Petitioner and the first agent through the door fell down on the floor, perhaps tripping over a step just behind the entryway. (Id. at 37-38, 121-24.) The agents handcuffed Petitioner and patted him down, finding $2,000 in cash. (Id. at 38-39.)
The agents seated Petitioner at the kitchen table and read him his Miranda rights. (Id. at 39-43; 123-26.) Agent Gagnon searched the apartment and periodicallyinterviewed Petitioner, describing his own tone and Petitioner's demeanor as calm and conversational. (Id.) An agent purchased breakfast sandwiches and beverages from a nearby store for everyone, including Petitioner. (Id.) Above the ceiling tiles in the bathroom, Agent Gagnon found approximately 200 pills and two bags of white powder. (Id. at 46-47.) Agent Gagnon testified that Petitioner admitted to obtaining drugs in Massachusetts and selling them in Maine. (Id. at 46-47, 54-60, 100-03.) When asked on cross-examination if he collected Petitioner's cell phone, Agent Gagnon said he believed he did but that he did not apply for a search warrant to access its content. (Id. at 70-79.)
Petitioner testified at trial and characterized the encounter differently than Agent Gagnon. Petitioner said the encounter was traumatic, that he was "scared the whole time," that the first agent through the door pressed a gun directly against Petitioner's head as they fell, and that the agents strip searched him. (Trial Transcript Vol. II at 65-68, 72.) According to Petitioner, the agents did not inform him of his Miranda rights and denied his explicit requests for a lawyer; he said never confessed to the crime. (Id. at 70-76.)
At the conclusion of the trial in March 2016, the jury found Petitioner guilty on both counts. (Docket Record at 7-8.)
Approximately two weeks after the trial, citing Brady v. Maryland, 373 U.S. 83 (1963), Petitioner requested a new trial because the defense had gained access to Petitioner's iPhone seized by law enforcement and learned that the call log did not contain a record of a call from Ms. Goodwin's phone number on July 29, 2014, the date that Agent Gagnon testified that he monitored a call from Ms. Goodwin to her supplier, DJ. (Motionfor a New Trial, ECF No. 11 at 2-4; Amended Motion for a New Trial, ECF No. 11 at 5-7.) The trial court held an evidentiary hearing in July 2016. (Docket Record at 9-10.)
At the hearing, Ms. Goodwin testified about her only mobile phone number in 2014, which did not appear on the July 29, 2014 call log exhibit that Petitioner introduced from the seized iPhone. (New Trial Hearing Transcript at 6-9, ECF No. 11 at 10-75.) She denied that Petitioner had given her another number to call, but she identified Petitioner as the individual she referred to as DJ. (Id. at 10-11.) Ms. Goodwin also testified that Petitioner would bring drugs with him when he came to Maine and that she and Petitioner sold pills and cocaine together. (Id. at 12-13.) Petitioner testified that he only had one mobile phone, and he agreed to give a computer expert his passcode to prove there were no phone calls between him and Ms. Goodwin on July 29th, 2014. (Id. at 17-21.) Petitioner denied that he sold drugs. (Id. at 20.)
Agent Gagnon testified that drug dealers commonly use two mobile phones. (Id. at 27.) He admitted that he did not note in his police reports or logs that he had collected Petitioner's phone, and he admitted that although he delivered drug evidence to the prosecutor's office when asked to produce the physical evidence before trial in response to Petitioner's request, he did not present a cell phone at that time. (Id. at 28-32.) Agent Gagnon explained why he did not log the passcode-protected iPhone in the evidence tracking system:
Since I've been at Maine Drug Enforcement nobody has been able to come up with a clear cut way that we should handle cell phones and Lithium batteries and such, because evidence gets stored at a central facility, and with the amount of phones that get taken from investigations, there hasn't been a clear cut where we should put phones. So I know that it's been practice inmy office that if you take a cell phone on a case, if you're going to do a search warrant on it, you log it into the tracker. If you're not going to do a search warrant on it based on things like we can't get into it because of a password, then we return it to the owner.
(Id. at 33-34.) He said he typically gets a call from a suspect asking for property to be returned, but he did not receive such a request in this case until after trial. (Id. at 34-35.)
Agent Gagnon testified that he had collected two mobile phones from the apartment on the day of Petitioner's arrest, an iPhone and a cheaper model. (Id. at 47-48.) Because both phones required passwords to access their contents, Agent Gagnon did not believe they would be of evidentiary value, so he placed them in a yellow envelope labeled with Petitioner's name and "return to owner" and put the envelope in his locker. (Id. at 49-50.) Agent Gagnon said he brought both phones to be examined when requested after trial, but Petitioner's consultant only examined the iPhone because Petitioner claimed the other phone did not belong to him. (Id. at 52-53.) He said drug dealers often use a cheaper phone and frequently switch those numbers, so he would not have expected to see anything incriminating on the iPhone. (Id. at 48-49.)
The state trial court concluded that "under the most charitable interpretation", the evidence could be considered favorable to Petitioner and was "at most inadvertently suppressed by the State." (Order on Motion for New Trial at 3, ECF No. 11 at 97-100.) The state court denied the motion for a new trial because it determined the evidence was not material as there was no reasonable probability of a different result even if Defendant had introduced the iPhone call history. (Id. at 4.) The state court noted the differences between Petitioner's version of the arrest and interview and Agent Gagnon's version,including the confession, the Miranda warnings, and the strip search and concluded that "[t]he jury found the agent's version of the interview more compelling, as did the court." (Id.)
In December 2016, Petitioner was sentenced to fourteen years imprisonment with all but seven years suspended, to be followed by three years of probation. (Docket Record at 11).
Petitioner appealed; in October 2017, the Maine Supreme Judicial Court affirmed. (State v. Nerval, Me. L. Ct., AND-17-13, Memorandum Decision.) Regarding Petitioner's Brady claim, the Supreme Judicial Court held:
The court also properly denied [Petitioner's] motion for a new trial because he failed to prove that there was a reasonable probability that the introduction of his iPhone into evidence at trial would have produced a different verdict. See State v. Twardus, 2013 ME 74, ¶ 32, 72 A.3d 523.
Id. at 1. The sentencing review panel of the Supreme Judicial Court also upheld Petitioner's sentence. (State v. Nerval, Me. L. Ct., SRP-17-14, Order Denying Leave to Appeal.)
In January 2018, Petitioner filed a postconviction petition in state court. (State v. Nerval, Me. Super. Ct., ANDCD-CR-2018-00246, Docket Record at 1.) In November 2019, Petitioner voluntary withdrew his postconviction petition in consideration for being resentenced with his term of imprisonment reduced by six months. (Id. at 3; Postconviction Hearing Transcript at 2-5.)
Petitioner filed his federal petition in the District of Massachusetts i...
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