DREWRY v. STATE OF MAINE

Filing 27

ORDER denying 22 Motion to Extend Time to File Supplement to Petition for Writ of Habeas Corpus. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BRANDON BOONE DREWRY,
Petitioner,
v.
STATE OF MAINE,
Respondent.

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1:14-cv-00449-JAW

ORDER ON MOTION FOR EXTENSION OF TIME TO FILE PETITIONER’S
SUPPLEMENT TO HIS PETITION FOR WRIT OF HABEAS CORPUS
Assuming that the Court retains jurisdiction to resolve a motion for extension
of time after the petitioner has filed a notice of appeal, the Court denies the motion
for extension of time to supplement a petition for writ of habeas corpus because the
petition itself is untimely.
I.

PROCEDURAL HISTORY
On November 5, 2014, Brandon Boone Drewry, an inmate at the Maine State

Prison, filed a petition under 28 U.S.C. § 2254 for writ of habeas corpus. Pet. under
28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF No. 1).
On the same day, Mr. Drewry moved for leave to proceed in forma pauperis and for
appointment of counsel. Certificate (ECF No. 4); Mot. for Appointment of Counsel
(ECF No. 5). On November 14, 2014, the Magistrate Judge granted the motion for
leave to proceed in forma pauperis but denied the motion for appointment of counsel.
Order (ECF No. 7); Order (ECF No. 9). On the same day, the Magistrate Judge

ordered the Attorney General of the state of Maine to file an answer or otherwise
respond to the petition. Order to Answer (ECF No. 10).
The Attorney General filed an answer to and motion to dismiss the petition on
December 18, 2014. Resp’t’s Mot. to Dismiss Pet. for Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254 (ECF No. 11). On December 18, 2014 and December 29, 2014,
Mr. Drewry filed another motion for appointment of counsel. Mot. for Enlargement
of Time or in the Alternative, for Appointment of Counsel (ECF No. 12); Mot. for
Appointment of Counsel to Assist Pet’r in Amending His Pet. for Writ of Habeas Corpus
(ECF No. 13). Mr. Drewry responded to the motion to dismiss on January 5, 2015.
Pet’r’s Resp. to Resp’t’s Mot. to Dismiss Pet. for Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 (ECF No. 14).
On January 23, 2015, the Magistrate Judge issued a recommended decision,
recommending that the Court grant the motion to dismiss and an order on the
motions for appointment of counsel. Recommended Decision on 28 U.S.C. § 2254 Mot.
and Order on Mots. Requesting the Appointment of Counsel (ECF No. 15)
(Recommended Decision). Objections to the Recommended Decision were due by
February 9, 2015. On February 2, 2015, Mr. Drewry moved to supplement his
petition, Pet’r’s Mot. to Supplement the Pet. for Writ of Habeas Corpus (ECF No. 17)
(First Mot. to Supplement), and on February 9, 2015, Mr. Drewry objected to the
Recommended Decision. Objection to Recommend[ed] Decision on U.S.C. § 2254 Mot.
and Order on Mots. Requesting the Appointment of Counsel (ECF No. 18).

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On February 23, 2015, the Court granted Mr. Drewry’s motion to supplement
the petition and adopted the recommended decision, dismissing the petition and
indicating that no certificate of appealability should issue. Order Granting Mot. to
Supplement Pet. for Writ of Habeas Corpus (ECF No. 19) (Order Granting Mot. to
Supplement); Order Affirming the Recommended Decision of the Magistrate Judge
(ECF No. 20) (Order Affirming). The Clerk’s Office entered a judgment in favor of
the Respondent and against Mr. Drewry on February 23, 2015. J. (ECF No. 21).
Finally on February 23, 2015, Mr. Drewry filed a motion to extend time to
supplement the petition and a notice of appeal. Mot. for Extension of Time to File
Pet’r’s Supplement to his Pet. for Writ of Habeas Corpus (ECF No. 22) (Pet’r’s Mot.);
Notice of Appeal (ECF No. 23).
II.

DISCUSSION
Pro se petitions often have a way of becoming hopelessly tangled. Here, the

Magistrate Judge’s recommended decision and order wiped the slate clean as of
January 23, 2015. The basis of the recommended decision was that Mr. Drewry’s
petition was untimely because more than one year passed from the date on which the
Maine Supreme Judicial Court denied Mr. Drewry’s first state court petition, March
28, 2011, and the date he filed his second state court post-conviction petition, April 3,
2012. Recommended Decision at 5 (citing 28 U.S.C. § 2244(d)). In addition, the
Magistrate Judge observed that the Maine Supreme Judicial Court issued its final
denial of his first motion for reconsideration in February 2013 and Mr. Drewry failed

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to file the pending petition until late October or early November 2014. Id. at 7. Nor
did the Magistrate Judge find valid grounds for equitable tolling. Id. at 7-9.
Mr. Drewry’s February 2, 2015 motion to supplement asked the Court to allow
him to amend his petition “to explicitly raise ‘actual innocence’ plus ‘witnesstampering’ by the prosecution & police, with ‘new-evidence’ not uncovered until too
late for earlier appeals and post-conviction proceedings.” First Mot. to Supplement at
1. In the motion, Mr. Drewry also moved the Court to order discovery. Id. On
February 23, 2015, the Court granted the motion to supplement the petition, but the
Court did not act on the motion for discovery. Order Granting Mot. to Supplement.
Thus, when the Court acted on his objection to the recommended decision, the Court
considered Mr. Drewry’s claims of actual innocence, witness tampering and new
evidence.

Id.

Even considering those supplemental assertions, because the

recommended decision was based on procedural grounds, the supplemental
information did not make a difference and the Court affirmed the recommended
decision and ruled that no certificate of appealability should issue. Order Affirming
at 1-2.
Mr. Drewry’s filing both a motion to extend time and a notice of appeal at the
same time confuses things because it presents the sometimes tricky question of
whether the trial court continues to have jurisdiction over the case once a notice of
appeal is filed. Generally, a notice of appeal divests the trial court of jurisdiction. See
United States v. Martin, 520 F.3d 87, 97 (1st Cir. 2008) (“‘As a general rule, with only
limited exceptions, entry of a notice of appeal divests the district court of jurisdiction

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to adjudicate any matters related to [an] appeal’”) (quoting United States v. Distasio,
820 F.2d 20, 23 (1st Cir. 1987)) (internal punctuation omitted).

Those “limited

exceptions” vary across the circuits. See CHARLES ALAN WRIGHT, ARTHUR R. MILLER,
EDWARD H. COOPER & CATHERINE T. STRUVE, 16A FEDERAL PRACTICE

AND

PROCEDURE § 3949.1 (4th ed. 2008).
In discussing this issue in United States v. Torres-Oliveras, 583 F.3d 37, 44 (1st
Cir. 2009), the First Circuit cited with approval a Fifth Circuit case, United States v.
Ortega, 859 F.2d 327, 334-35 (5th Cir. 1988). In Ortega, the Fifth Circuit described
the divestiture of jurisdiction rule as allowing for “the need for . . . reasoned choice.”
859 F.2d at 334 (internal citations and quotation marks omitted). Although the Court
could not locate a First Circuit case that specifically addresses whether a trial court
may rule on a motion to extend time to supplement a record, filed just before a notice
of appeal, the Court applies the “reasoned choice” rationale and assumes that it
retains limited jurisdiction to resolve the housekeeping motion pending in this case
at the time of the filing of the notice of appeal. See also Stewart v. Donges, 915 F.2d
572, 575 n.3 (10th Cir. 1990) (a district court may exercise jurisdiction over any
remaining “tangential matters” despite the filing of a notice of appeal).
Assuming that this Court retains jurisdiction to resolve the motion to extend
even after the notice of appeal was filed, the Court denies the motion to extend time.
Mr. Drewry’s motion is premised on the erroneous view that in granting the February
2, 2015 motion to supplement, the Court was allowing him to engage in discovery and
develop his claims of actual innocence, witness tampering and other new evidence. It

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was not. The Court was only allowing Mr. Drewry to supplement his petition to assert
these additional claims and the Court considered those claims in evaluating the
recommended decision.
The recommended decision and the Court’s affirmance of the recommended
decision were grounded on procedural defects in Mr. Drewry’s petition that did not
depend upon the merits of his claims. To grant Mr. Drewry the right to proceed with
discovery and to “describe the facts to be investigated,” Pet’r’s Mot. at 2, would be
contrary to the Court’s overriding conclusion that Mr. Drewry may not bring his claim
at all because the petition was untimely.
III.

CONCLUSION
The Court DENIES Brandon Boone Drewry’s Motion for Extension of Time to

File Petitioner’s Supplement to his Petition for Writ of Habeas Corpus (ECF No. 22).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 8th day of April, 2015

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