Roussel v. Corrections, Maine Comm., Civil No. 00-231-B-S (D. Me. 2/6/2001), Civil No. 00-231-B-S.
| Decision Date | 06 February 2001 |
| Docket Number | Civil No. 00-231-B-S. |
| Parties | Raymond A. ROUSSEL, Plaintiff, v. CORRECTIONS, MAINE COMM., et al, Defendant. |
| Court | U.S. District Court — District of Maine |
Stuart W. Tisdale Jr, Esq., Tisdale & Davis, Portland, Me., for plaintiff.
James M. Cameron, Esq., Asst. Attorney General Criminal Prosecution Div., Augusta, Me., for defendant.
RECOMMENDED DECISION
Petitioner Raymond A. Roussel has filed a petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Roussel's sole ground for relief, previously raised in his state court direct appeal, is that he was convicted on insufficient evidence in violation of the Due Process Clause of the Fourteenth Amendment. Because Roussel is not "a person in custody" pursuant to § 2254(a), I recommend that the petition be DISMISSED. In the event the Court does consider the merits of the petition, I recommend that the Writ be DENIED.
Raymond Roussel was indicted by the Piscataquis County Grand Jury on January 6, 1999, on charges of aggravated trafficking in schedule Z drugs, in violation of 17-A M.R.S.A. § 1105(1)(E)(West Supp. 2000), based on an allegation that he grew or cultivated 100 or more marijuana plants within 1000 feet of a school. A jury trial was held on September 22, 1999, and Roussel was convicted of the lesser included offense of unlawful trafficking in scheduled drugs, in violation of 17-A M.R.S.A. § 1103(2)(B) (West 1983 & Supp. 2000). The jury found that Roussel grew or cultivated 100 or more marijuana plants, but failed to find that he did so within 1000 feet of a school.
Roussel was sentenced the same day. He received a one-year term of imprisonment with all but thirty days in the Piscataquis County Jail suspended, followed by one year of probation, with a number of special conditions. Roussel went into execution of that sentence on September 22, 1999. Pursuant to state law, Roussel's probationary period commenced upon completion of thirty-day term of imprisonment on October 18, 1999. The record reflects no tolling of the probation period for a probation violation or for any other reason. Roussel's sentence was therefore completed in its entirety on October 18, 2000. The instant petition was filed on November 20, 2000.
While in execution of his sentence, Roussel filed a notice of appeal to the Maine Supreme Judicial Court on October 21, 1999. At no time did he apply for post-conviction bail under 15 M.R.S.A. § 1051(West Supp. 2000), nor was bail granted. As a result there was never a stay of execution of the sentence pursuant to Maine Rule of Criminal Procedure 38(a). In addition to raising the insufficiency of the evidence ground raised by this petition, Roussel also challenged his conviction on the basis that certain evidence was improperly admitted and that clerical errors in the Judgment and Commitment resulted in reversible error. The Maine Law Court denied his direct appeal. State v. Roussel, 2000 ME 185, 760 A.2d 1062. There was no state post-conviction activity in this case.
The evidence presented at trial, as viewed in the light most favorable to the State, showed that Roussel assisted Timothy Farrar (a key prosecution witness) in tending marijuana plants at three locations. These plots were described and distinguished at trial by reference to natural and manmade landmarks: they tended 48 marijuana plants in the ground across the Pleasant River (Tr. at 36, 46-47, 51, 59; but see Tr. at 78 ()), 40 marijuana plants in the ground near the Boston and Aroostook Railroad tracks (Tr. at 47), and 24 marijuana plants in milk buckets in the woods next to the trail to the railroad tracks. (Tr. at 47-48, 63-65.) There was also evidence relating to approximately 200 marijuana plants growing at Farrar's parents' house, which the state alleged was located within 1000 feet of a school. (Tr. at 41-42.) The jury's verdict rebuffing the aggravated trafficking charge reflects that either they rejected the argument that the house was within 1000 feet of a school or they rejected the contention that Roussel assisted in the cultivation of those plants. In any event the evidence relative to the 200 plants is not relevant to the instant petition.
The organization underlying these growing efforts was rudimentary. Timothy Farrar planned to grow marijuana outdoors during the late spring and early summer of 1998, but he needed help from others. (Tr. at 50, 52.) Farrar asked Roussel for assistance in exchange for a cut of the profits and Roussel agreed. (Tr. at 50.) Roussel's assistance consisted of watering plants, digging and moving dirt used to plant seedlings, and transplanting plants from milk jugs into the ground. (Tr. at 45, 51.) Roussel assisted Farrar during a three-week period in May of 1998. (Tr. at 50, 52-53.) During that period Farrar told Roussel that he had as many as 500 plants growing that he was planning to plant. (Id.) The police caught Roussel and Farrar while they were carrying water to the marijuana plants on May 28, 1998. (Tr. at 36, 54.)
About thirty yards from location where Farrar and Roussel were apprehended, an officer located the 24 marijuana plants in the milk jugs along a well-beaten path. (Tr. at 75-77.) When two officers returned to the area by the railroad tracks after the apprehension, they located 40 marijuana plants that had already been transplanted into the ground. (Tr. at 77.) The first marijuana plot located by the officers, and the one which formed the basis of the information that led to a search warrant for Farrar's residence, was the plot containing what is variously described as 45-48 plants situated in ground across the Pleasant River in a location distinct from the area surrounding the Bangor and Aroostook Railroad tracks where the 24 milk jug plants and the 40 transplanted plants were seized. (Tr. at 78-79.) At the location by the railroad tracks officers discovered a homemade carrier made from two-by-fours used to move planting provisions to the growing sites. (Tr. at 49-50, 80.) The carrier required two people to carry it. (Tr. at 49, 80.) The marijuana in the plastic jugs was clearly visible as you walked down the well-beaten path, in fact one had to step around them to continue on the path. (Tr. at 81.) The path led to an area where potting soil and other planting implements were stored and to the spot where the 40 plants in the ground were growing, at the most, fifty to sixty yards from the plastic milk jugs. (Tr. at 81-82.)
In this case the jury was properly instructed that Roussel could be convicted as a principal or an accomplice. Roussel, 2000 ME 185, ¶ 9, 760 A.2d at 1064; (Tr. at 107).
This action brought pursuant to 28 U.S.C. § 2254 must pass at least three preliminary hurdles before this Court considers Roussel's claim. First, the petition must fall within the one-year period of limitations set forth in 28 U.S.C. § 2244(d)(1). Second, Roussel must satisfy the exhaustion doctrine as set forth in 28 U.S.C. § 2254 (b) and (c), in that his federal constitutional ground asserted in the petition must have been "fairly presented" to the state court. Finally, Roussel must be "in custody" pursuant to a judgment of a state court within the meaning of § 2254(a). In the present case the State does not dispute that this petition is timely filed or that the federal constitutional ground was fully considered by the Law Court. The State, however, maintains that Roussel was not "in custody" at the time he filed this petition and that the matter should be dismissed.
The concept of custody has been construed liberally and is certainly not limited to actual incarceration. See, e.g., Hensley v. Mun. Ct., 411 U.S. 345 (1973) (); Jones v. Cunningham, 371 U.S. 236 (1963) (parole); Barry v. Bergen County Prob., 128 F.3d 152, 159-62 (3rd Cir. 1997) (community service); Fawcett v. Bablitch, 962 F.2d 617 (7th Cir. 1992) (probation). Furthermore, if a petitioner is "in custody" at the time the petition is filed, a subsequent change in status will not prevent full consideration of the petition. Carafas v. LaVallee, 391 U.S. 234 (1968).
Although custody does not require incarceration, it does require that the person be subject to restraints not imposed on the public generally and at least be under some manner of continuing governmental supervision. Tinder v. Paula, 725 F.2d 801, 803 (1st Cir. 1984). The Tinder case, like the instant matter, involved a petitioner who had completed his sentence, including a three-year period of probation. The First Circuit noted that Tinder's failure to make court ordered restitution during the probationary period and the remote possibility that the Massachusetts courts could somehow regain supervision over him for that purpose did not amount to custody sufficient to invoke habeas corpus relief. Tinder, 725 F.2d at 804-05. Roussel, from all indications in the record, satisfied all of his financial obligations while on probation, and therefore there is even less reason to argue that he is subject to governmental control.
The prospect that Roussel's conviction might have undesirable secondary repercussions for him does not save this petition. Decisions post-Tinder have uniformly recognized that the collateral consequences attendant to a prior felony conviction are insufficient to invoke habeas corpus relief. See e.g. Maleng v. Cook, 490 U.S. 488, 492 (1989) (); Williamson v. Gregoire, 151 F.3d 1180 (9th Cir. 1998) (); Lefkowitz v. Fair, 816 F.2d 17, 19-21 (1st Cir. 1987) (...
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