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Finch v. State, revised 9-1-99
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 108
Docket:	Pen-98-701
Argued:	June 8, 1999
Decided:	July 9, 1999

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and ALEXANDER, JJ.




DAVID FINCH v. STATE OF MAINE


SAUFLEY, J.

	[¶1]  David Finch appeals from a judgment entered in the Superior
Court (Penobscot County, Studstrup, J.) summarily dismissing, as untimely,
his petition for post-conviction review.  Finch contends that the one-year
grace period established by 15 M.R.S.A. § 2128 (Supp. 1998), which enacted
a one-year statute of limitations for filing petitions for post-conviction
review, was insufficient to protect his right to due process.  We affirm. 
I. BACKGROUND
	[¶2]  On February 6, 1996, Finch pled guilty, in Penobscot County
Superior Court (Marsano, J.), to multiple criminal charges stemming from
three separate actions, two of which arose in Penobscot County and one of
which arose in Hancock County.  The sentence entered resulted from a plea
agreement with the District Attorney's Office.  Finch did not appeal from the
judgments entered, see 15 M.R.S.A. § 2115 (Supp. 1998), or apply for
review of the sentences imposed, see 15 M.R.S.A. § 2151 (Supp. 1998).
	[¶3]  Twenty months later, in October of 1998, Finch filed a petition
for post-conviction review challenging his 1996 convictions.{1}  The petition
alleged ineffective assistance of counsel based on his attorney's failure to
adequately represent and counsel Finch regarding the consequences of his
plea agreement.
	[¶4]  The Superior Court issued a post-conviction assignment order
assigning the matter to the regular criminal docket for consideration on its
merits.  Shortly thereafter, however, the Superior Court vacated its order
and summarily dismissed Finch's petition, concluding that the petition had
not been timely filed pursuant to a recent amendment to 15 M.R.S.A.
§ 2128.
	[¶5]  Finch then filed a motion for reconsideration of the Superior
Court's order summarily dismissing his petition.  Because there had been no
specific statute of limitations on the filing of post-conviction petitions at the
time that he was sentenced, Finch contended that the application of the
new limitation violated his due process rights and the prohibition against ex
post facto laws.{2}  The Superior Court denied the motion for reconsideration,
concluding that the amendment did not violate due process because "it was
specifically crafted to ensure that prisoners convicted prior to enactment
and signing of the new law would have sufficient time to file their petitions
before the S.O.L. became effective."  Finch filed a petition for certificate of
probable cause, pursuant to 15 M.R.S.A. § 2131 (Supp. 1998), seeking
reinstatement of consideration on the merits of his petition for post-
conviction review.  We granted the certificate of probable cause to
determine whether any of Finch's constitutional rights had been violated by
the application of 15 M.R.S.A. § 2128 to his petition for post-conviction
review.
II. DISCUSSION
	[¶6]  Prior to 1997, the statute limiting the time in which petitions
for post-conviction review may be filed was essentially a statutory application
of the equitable doctrine of laches.  It provided that:
[a] petition may be dismissed if it appears that by delay in its
filing the State has been prejudiced in its ability to respond to
the petition or to retry the petitioner, unless the petitioner
shows that it is based on grounds of which the petitioner could
not have had knowledge by the exercise of reasonable diligence
before the circumstances prejudicial to the State occurred.  If
the delay is more than 5 years following the final disposition of
any direct appeal to the Maine Law Court or if an appeal is not
taken within 5 years following the running of the period within
which that appeal must have been initiated, prejudice is
presumed, although this presumption is rebuttable by the
petitioner.
15 M.R.S.A. § 2128(5) (1995), repealed by P.L. 1997, ch. 399, § 3 (effective
September 19, 1997). 
	[¶7]  In 1997, the Legislature adopted a filing deadline for petitions
for post-conviction review "modeled after the federal habeas corpus statute,
28 United States Code, section 2244."  L.D. 1533, Summary (118th Legis.
1997).{3}  The new filing deadline is provided as follows:
	5.  Filing deadline for direct impediment.  A one-year
period of limitation applies to initiating a petition for post-
conviction review seeking relief from a criminal judgment under
section 2124, subsection 1 or 1-A.  The limitation period runs
from the latest of the following:
	A.  The date of final disposition of the direct appeal
from the underlying criminal judgment or the expiration
of the time for seeking the appeal;

	B.  The date on which the constitutional right, state
or federal, asserted was initially recognized by the Law
Court or the Supreme Court of the United States, if the
right has been newly recognized by that highest court and
made retroactively applicable to cases on collateral review;
or 

	C.  The date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.
The time during which a properly filed petition for writ of
certiorari to the Supreme Court of the United States with
respect to the same criminal judgment is pending is not
counted toward any period of limitation under this subsection.

	6.  Filing deadline for indirect impediment.  A one-year
period of limitation applies to initiating a petition for post-
conviction review seeking relief from a criminal judgment under
section 2124, subsection 3.  The limitation period runs from the
date of imposition of a sentence for the new crime resulting in
the indirect impediment.
15 M.R.S.A. § 2128(5), (6). 
	[¶8]  To ensure fairness, the Legislature established a one-year grace
period before the new statute of limitations would apply, see L.D. 1533,
Summary (118th Legis. 1997), which reads as follows:
A petition filed within the one year following the effective date of
this Act is not subject to the new filing deadline, but remains
subject to the provisions of former section 2128, subsection 5
relating to delay.
P.L. 1997, ch. 399, § 5 (effective September 19, 1997).  The grace period
allowed prisoners convicted prior to the Act's effective date a full year after
its enactment within which to file a petition.  A prisoner must therefore file
his petition for post-conviction review within one year of the triggering
events set forth in section 2128(5) or within one year of the effective date of
the new limitation, September 19, 1998, whichever is later.  Because
September 19, 1998, is later than the one-year anniversary of his
conviction, February 6, 1997, Finch had until September 19, 1998, to file
his petition.  He did not file a petition until October 9, 1998. 
	[¶9]  Recognizing that ex post facto considerations do not apply to
post-conviction proceedings,{4} Finch abandoned his argument on this point,
but urges us to determine that the retroactive application of 15 M.R.S.A.
§ 2128 unconstitutionally deprives him of due process by establishing a time
bar to his right to file a petition for post-conviction review.  "Elementary
considerations of fairness dictate that individuals should have an opportunity
to know what the law is and to conform their conduct accordingly." 
Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994).  Because an
individual may not be deprived of life, liberty, or property, without due
process of law, "'all statutes of limitation must proceed on the idea that the
party has full opportunity afforded him to try his right in the courts.'"  Ross
v. Artuz, 150 F.3d 97, 100 (2d Cir. 1998) (quoting Wilson v. Iseminger, 185
U.S. 55, 62 (1902)).  Statutes of limitation, newly enacted, which shorten
the time for filing or extinguish existing claims may deprive a party of due
process through retroactive application.  See id. (citations omitted).  The
presumption against retroactive legislation is deeply rooted in the
jurisprudence of the United States.  See Landgraf, 511 U.S. at 265.  Anti-
retroactivity principles can be found in the Ex Post Facto Clause, the
prohibition against Bills of Attainder, and due process concepts of fair
notice.  See id. at 266.
	[¶10]  When determining whether a statute is retroactive in nature,
"familiar considerations of fair notice, reasonable reliance, and settled
expectations offer sound guidance."  Id. at 270.  A statute that purports to
extinguish the existing rights of a claimant without affording a reasonable
opportunity for the exercise of those rights, may be held to be 
"an unlawful attempt to extinguish rights arbitrarily, whatever
might be the purport of its provisions.  It is essential that such
statutes allow a reasonable time after they take effect for the
commencement of suits upon existing causes of action."
Texaco, Inc. v. Short, 454 U.S. 516, 527 n.21 (1982) (quoting Iseminger,
185 U.S. at 62-63) (emphasis added). 
	[¶11]  Had the statute of limitations established by section 2128 been
woodenly applied to Finch, he would have been required to have filed a
petition within a year of the expiration of the time for filing a direct appeal
from the judgments entered, that is, on or before February 26, 1997, seven
months before the effective date of the new limitation.  Effectively the
application of the statute in that manner would have barred Finch's
opportunity to petition for post-conviction review immediately upon its
enactment.
	[¶12]  Recognizing, however, that the amendments to section 2128
would automatically cut off the rights of certain prisoners to petition for
post-conviction review, the Legislature looked to the experience of the
federal courts in fashioning a reasonable remedy to the problem and enacted
a grace period which reflected reasonableness considerations discussed at
length in the opinions of federal courts.  
	[¶13]  Unlike 15 M.R.S.A. § 2128, the federal statute of limitations on
filing a petition for habeas corpus fails to provide a window in which
individuals sentenced before it was effective may file such a petition.  See 28
U.S.C. § 2244.  Federal courts have therefore been forced to establish
guideposts for reasonableness in the application of the statute.  In order to
avoid possible constitutional deficiencies resulting from its retroactive
effect, federal courts "have read [the statute] to include a 'reasonable time'
after its effective date . . .  during which prisoners whose convictions had
already become final could file their collateral attacks in federal court." 
United States v. Timber, 7 F. Supp.2d 1356, 1358 (N.D. Ga. 1998).  See, e.g.,
Rogers v. United States, No. 98-2215, 1999 WL 398092 (1st Cir. June 17,
1999); Libby v. Magnusson, No. 98-1067, 1999 WL 315789 (1st Cir. May 24,
1999).{5}  Each of these courts determined that providing individuals
previously convicted of crimes a full year to file their habeas corpus petitions
was sufficient to avoid any potential constitutional deficiencies.
	[¶14]  By adopting a one-year grace period within which individuals
convicted of crimes before the enactment of 15 M.R.S.A. § 2128 could file a
petition for post-conviction review, the Legislature avoided the possible
deprivation of due process and assured that prisoners convicted prior to the
statute's enactment are afforded no less protection than individuals
convicted of crimes after its enactment.  Finch has failed to demonstrate
that anything longer than the one-year grace period was necessary to
preserve a reasonable opportunity for him to exercise his rights to file a
petition for post-conviction review.  
	[¶15]  We therefore conclude that the provisions of 15 M.R.S.A.
§ 2128 establishing a one-year statute of limitations for filing petitions for
post-conviction review do not deprive prisoners sentenced before its
effective date of due process because they provided those prisoners a full
year after its enactment within which to file a petition.
	The entry is:
Judgment of the Superior Court dismissing the
petition for post-conviction review is affirmed.
                                                                            

Attorney for petitioner: Joanne Kroll, Esq., (orally) 342 Main St. P.O. Box 1515 Rockland, Maine 04841-1515 Attorneys for State: Andrew Ketterer, Attorney General Charles K. Leadbetter, Asst. Atty. Gen., orally) State House Station 6 Augusta, Maine 04333
FOOTNOTES******************************** {1} . Finch dated the petition October 9, 1998, but it was not filed with the Superior Court until October 15, 1998. Finch contends that we should adopt the "prison mailbox rule," whereby "a notice of appeal is deemed timely filed when an inmate deposits the notice in the prison mail system prior to the expiration of the filing deadline." Moore v. U.S., 173 F.3d 1131, 1135 (8th Cir. 1999) (citing Houston v. Lack, 487 U.S. 266, 270 (1988)). Without deciding whether we would adopt the mailbox rule, we will assume for purposes of this appeal that Finch's petition was filed on October 9, 1998. {2} . See U.S. Const. art. I, § 10, cl. 1; Me. Const. art. I, § 11. {3} . The reference is to the provisions of the Anti-terrorism and Effective Death Penalty Act (AEDPA) that establish the time limitation for applications for writs of habeas corpus by persons in custody pursuant to a state law judgment. The Act provides that: (d)(1) a 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-- (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 28 U.S.C. § 2244(d) (1994 & Supp. 1999). {4} . See State v. Joubert, 603 A.2d 861, 868-69 (Me. 1992) (relying on Collins v. Youngblood, 497 U.S. 37, 41 (1990)). See also Libby v. Magnusson, No. 98-1067, 1999 WL 315789, at *2 (1st Cir. May 24, 1999) (time limits on second or successive habeas petitions do not violate Ex Post Facto Clause);Velasquez v. United States, 4 F. Supp.2d 331, 334 n.3 (S.D.N.Y. 1998); Rashid v. Khulmann, 991 F. Supp. 254, 260 (S.D.N.Y. 1998); Commonwealth v. Peterkin, 722 A.2d 638, 643 n.8 (Pa. 1998) (enactment of one-year time limit for filing post-conviction relief petition did not fall within any category of actions prohibited by Ex Post Facto Clause). {5} . Among the circuits addressing the question of a "reasonable time," two different views emerged. See Timber, 7 F. Supp.2d at 1359. Several circuits adopted the firm rule that one year from the effective date of the statute constitutes a reasonable time. See id. (citing United States v. Flores, 135 F.3d 1000, 1006 (5th Cir. 1998); Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998); Calderon v. United States, 128 F.3d 1283, 1286-87 (9th Cir. 1997); United States v. Simmonds, 111 F.3d 737 (10th Cir. 1997)). See also Nichols v. Bowersox, 172 F.3d 1068, 1073 (8th Cir. 1999); Wilcox v. Florida Dep't of Corrections, 158 F.3d 1209, 1211 (11th Cir. 1998). The Second Circuit originally referenced a more flexible approach to the analysis of what constitutes a reasonable time for prisoners to file their collateral attacks. See Timber, 7 F. Supp.2d at 1359 (citing Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir. 1997) (declining to adopt a rigid one-year period and finding no need to provide a full year where a prisoner had several years to contemplate filing a petition for federal habeas corpus)). The Second Circuit has since expressly adopted the firm rule that a one-year grace period is a reasonable time. Ross, 150 F.3d at 101.