BERUBE v. WARDEN, DOWNEAST CORRECTIONAL FACILITY

Filing 7

ORDER granting 2 Motion for transcripts AND OPTIONAL SUPPLEMENTAL BRIEFING. Transcripts or Status Report due by 2/1/14. Optional briefing due 21 days after filing of transcripts. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
WILLIAM BERUBE,
Plaintiff
v.
WARDEN, DOWNEAST
CORRECTIONAL FACILITY
Defendant

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1:13-cv-299-GZS

ORDER ON MOTION FOR TRANSCRIPTS AND
OPTIONAL SUPPLEMENTAL BRIEFING
William Berube has filed a petition (ECF No. 1) pursuant to 28 U.S.C. § 2254,
challenging a probation revocation that followed his judgment of conviction, in state court, of
theft by unauthorized taking and criminal trespass. State of Maine v. William Berube, MACSCCR-2011-00114 (Me. Super. Ct., Was. Cnty, Feb. 17, 2012). (State Court Record at 11, ECF
No. 11.) Berube’s section 2254 petition concerns the probation revocation and asserts claims for
ineffective assistance of counsel, judicial bias, excessive drug testing in violation of the
conditions of probation, and lack of a meaningful post-deprivation remedy in violation of the
14th Amendment.
On the same date as he filed his section 2254 petition, Berube filed the pending motion
for transcripts of the probation revocation proceedings. (Motion, ECF No. 2.) I ordered the
State to respond to the petition. In its response, the State informed the court that it had requested
a transcript of the hearing held on February 25, 2013, and will file the transcript when it is ready.
(State’s Response at 3 n.1, ECF No. 5.) Nevertheless, the State argued in its response that the
transcript was not necessary, as the petition should be dismissed because Berube failed to

exhaust his claims in state court. (State’s Response at 3.) Thus, the state’s only defense is
exhaustion.
I conclude that I will need the transcripts of the probation revocation hearings in order to
recommend a decision on Berube’s section 2254 petition. The remainder of this order explains
the procedural status of the case and the process I have ordered for the filing of the transcripts
and optional supplemental briefing by the parties.
Facts and Procedural History
The state court record reveals that Berube pleaded guilty and was convicted and
sentenced on February 17, 2012. (Record at 11.) He was sentenced to thirty months of
imprisonment on count one for theft by unauthorized taking or transfer and to 120 days of
imprisonment on count two for criminal trespass. The sentence on count two was to be served
concurrently with the sentence on count one. (Record at 11.) The state court ordered that all but
120 days of the term of imprisonment be suspended and that Berube receive two years of
probation subject to certain special conditions, one of which was that he not possess or use
unlawful drugs. (Record at 5.)1 Berube did not appeal the judgment and did not seek permission
to appeal the sentence.
Three motions for probation revocation were filed in the Superior Court. The first
motion was filed in October 2012. That motion alleged that on or about October 12, 2012,
Berube used an opiate, marijuana, methadone, and benzodiazepine. (Record at 14.) It was
supported by an affidavit from the probation officer stating that an officer with the Baileyville

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There appears to be a mathematical discrepancy in the sentencing. A 30-month term, minus four
months of an unsuspended term, leaves twenty-six months as the suspended term. The term of probation
was two years. At the revocation hearing Berube claims he was ordered to serve the balance of his
suspended sentence, but the actual revocation was for a period of 24 months, meaning that the entire
balance of the sentence was not revoked. It does appear probation was terminated with the revocation,
thus resulting in a two-month “gift” to Berube.
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Police Department had stopped a vehicle in which Berube was a passenger. (Record at 15.) The
affidavit stated that the officer who stopped the vehicle required Berube to be tested for drug use,
and the result was positive for the drugs listed on the State’s first probation revocation motion.
The affidavit added the following allegations: Berube admitted to the use of opiates but
told the officer he had a prescription. His physician and pharmacy, designated pursuant to the
pharmacy conditions identified as part of the special probation conditions, told the probation
officer that Berube had been prescribed oxycodone in June 2012. In mid-July, Berube tested
positive but told the probation officer that he had just taken the last of the oxycodone and had no
more left. Berube tested negative in August 2012. (Record at 15.) As to the positive marijuana
test result, Berube said he had been in contact the day before with someone who had a legal
prescription for medical marijuana. Berube told the officer he was baffled over the positive test
for methadone. Berube did not address the positive result for benzodiazepine. (Record at 15.)
The probation officer’s violation review form included a recommendation for a partial revocation
at that point. (Record at 17.)
It appears from the handwritten notes on the first motion that Berube denied the charge at
the initial appearance in October 2012. (Record at 14.) The court granted Berube’s motion for
appointment of counsel, and it appears that the court appointed the same attorney as Berube had
when he pleaded to the underlying criminal charges. (Record at 7, 14.) At the probation
revocation hearing held on December 17, 2012, Berube admitted that he had violated his
probation conditions. (Record at 8.) The court continued the hearing, thus leaving for later
determination what if any portion of the suspended sentence Berube would be required to serve.
(Record at 8.)

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The second motion was filed on December 17, 2012. That motion alleged that Berube
illegally used an opiate on or about November 13, 2012. (Record at 8, 18.) Berube denied the
charge at his initial appearance on December 17, 2012. (Record at 8.) In January 2013, the
hearing was continued to February 25, 2013. (Record at 8.)
Meanwhile, the third motion was filed on February 20, 2013. (Record at 8.) That motion
alleged that Berube illegally used both morphine and codeine on or about February 5, 2013, and
that he illegally used morphine again on or about February 19, 2013. (Record at 19.) The
probation officer represented that this violated both probation and bail conditions. (Record at
20.) The probation officer’s affidavit states that Berube contested the positive results of the urine
screening drug test for morphine, but when the sample was subsequently sent to an out-of-state
laboratory, it tested positive for both morphine and codeine. (Record at 21.) The affidavit states
that on February 19, 2013, Berube admitted at the probation office that he had used morphine the
day before. (Record at 21.) Berube’s initial appearance was held on February 22, 2013, but no
plea is indicated on the docket sheet. (Record at 8.)
At the hearing on February 25, 2013, Berube appeared with counsel. (Record at 22.) The
court heard the second and third motions as well as the issue of the term to be served as to all
three motions. (Record at 22.) The court noted in its order that Berube admitted to violations of
one or more of the conditions of probation. It revoked probation and ordered Berube to serve
twenty-four months. (Record at 22.)
Berube filed a petition for state court post-conviction review in May 2013. (Record at
24.) On June 27, 2013, the state court entered a summary dismissal of Berube’s post-conviction
petition on the basis that it related to probation revocation and was therefore outside the
jurisdiction of Maine’s post-conviction review statute, 15 M.R.S. § 2121(2). (Record at 28.)

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Berube represents in his section 2254 petition that he filed a notice of appeal in state court of the
summary dismissal of his state post-conviction petition. (Petition at 5; Reply at 2, ECF No. 6.)
However, the docket sheet for the post-conviction review contains no entry for a notice of appeal
of the summary dismissal. (Record at 23.)
Berube filed his section 2254 petition in this court in August 2013. He asserts ineffective
assistance of counsel in the probation revocation proceedings, and he asserts that his procedural
default was due to ineffective assistance of counsel. (Petition at 5, 10.) He alleges that his
attorney promised him that he would receive a nine-month partial probation revocation in
exchange for his admission of the probation violations. He alleges that his decision to admit to
them was a direct result of poor advice from counsel. He also alleges that the attorney failed to
adequately investigate the probation violations and failed to object to the continuance of the
hearing, which resulted in the cumulative and prejudicial effect of having multiple alleged
violations addressed in a single hearing. (Petition at 5.) Berube’s petition essentially alleges that
he was either not advised or poorly advised on the discretionary appeals process for probation
violations. (Petition at 10.)
Discussion
I have reviewed the petition and response and have determined that it would be helpful to
review the transcripts from three probation revocation court appearances in this case. These took
place on December 17, 2012, which was the hearing on the first motion; February 22, 2013,
which appears to have been Berube’s initial appearance on both the second and third motions;
and February 25, 2013, which was the hearing involving all three motions. I therefore grant
Berube’s motion for transcripts and order the State to file all three transcripts on a single date, as
soon as possible but not before all are completed. If the transcripts have not been completed by

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February 1, 2014, I order the State to file a status report on February 1, 2014, concerning the
status of the transcripts and when they are expected to be completed and filed.
If the parties would like to file supplemental briefing concerning the issues raised by the
probation revocation hearings, they each may file a brief of not more than ten pages. In their
supplemental briefs, they should reference the relevant transcript pages that they assert support
their arguments. The State’s typewritten ten pages must be double-spaced. If Berube’s
supplemental brief is hand-written in the same legible style as his reply (ECF No. 6), his
supplemental brief may be not more than ten pages but may be single-spaced. The filing
deadline for both the State and Berube will be twenty-one days after the date on which the
transcripts are filed. No further filings will be permitted.
Conclusion
Berube’s motion for transcripts is granted. The State is ordered to file transcripts for the
hearings held on December 17, 2012, February 22, 2013, and February 25, 2013. The filing of
the transcripts is to be made on a single date, as soon as possible after all of the transcripts are
completed. If the transcripts have not been completed by February 1, 2014, I order the State to
file a status report on February 1, 2014, as described above. The State and Berube are permitted
but not required to file one supplemental brief, as described above. The deadline for the
supplemental briefs will be twenty-one days after the date on which the transcripts are filed.

So Ordered.
/s/ Margaret J. Kravchuk
U.S. Magistrate Judge
December 4, 2013

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