THERIAULT v. STATE OF MAINE

Filing 11

ORDER adopting 9 Report and Recommended Decision for 1 Petition for Writ of Habeas Corpus filed by MARK THERIAULT; denying 1 Petition for Writ of Habeas Corpus. No Certificate of Appealability should issue because there is no substantial issue that could be presented on appeal. See Fed.R.App.P.22 and Rule 11 of the Rules Governing Proceedings Under 28 U.S.C. Section 2254 or Section 2255. See also First Circuit Local Rule 22.0. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MARK J. THERIAULT,
Petitioner,
v.
STATE OF MAINE,
Respondent.

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1:16-cv-00576-JAW

ORDER AFFIRMING THE
RECOMMENDED DECISION OF THE MAGISTRATE JUDGE
On February 8, 2011, a state court jury found Mark Theriault guilty of
unlawful sexual contact and on February 9, 2011, a state superior court
justice sentenced him to sixteen years’ incarceration, all but eight years
suspended. Having exhausted state court challenges to the conviction and
sentence, Mr. Theriault comes to federal court for vindication, declaring that
he has been “falsely accused and wrongfully convicted of this crime for which
I have been wrongfully imprisoned for.”
What makes Mr. Theriault’s case unusual is that the Maine Supreme
Judicial Court found that his defense lawyer violated Rules 1.1, 1.3, 1.4 and
8.4(a)(d) of the Maine Rules of Professional Conduct in his representation of
Mr. Theriault and for this reason and for others, the Maine Law Court
imposed discipline upon his lawyer. Despite this determination, the state
courts concluded that this same defense counsel rendered effective assistance

of counsel in his case and that his professional conduct did not prejudice Mr.
Theriault’s defense.
The Court carefully reviewed Mr. Theriault’s allegations and after
doing so, concluded, like the Magistrate Judge, that Mr. Theriault has not
demonstrated that an evidentiary hearing is warranted, that his allegations
justify relief under 28 U.S.C. § 2254, or that a certificate of appealability
should issue. In these rare circumstances, the Court is conscious that Mr.
Theriault deserves a thorough explanation for why this Court has concluded
his petition under 28 U.S.C. § 2254 must fail. The Court’s analysis, which
incorporates and expands upon a similar discussion by the Magistrate Judge,
follows.
I.

PROCEDURAL HISTORY
A.

Trial and Direct Appeal

On July 11, 2008, a grand jury indicted Mr. Theriault for unlawful
sexual contact with a minor under twelve years of age, in violation of 17-A
M.R.S. § 255-A(1)(F-1).1

State v. Theriault, No. CARSC-CR-2008-00262,

Indictment (Docket Record at 1).2 The indictment alleged that the sexual

1

The statute reads:
A person is guilty of unlawful sexual contact if the actor intentionally
subjects another person to any sexual contact and . . . [t]he other person, not
the actor’s spouse, is in fact less than 12 years of age and the actor is at least
3 years older and the sexual contact includes penetration. Violation of this
paragraph is a Class A crime[.]

17-A M.R.S. § 255-A(1)(F-1).
2
The state court records were filed in paper form. (ECF No. 5).

2

contact included penetration.3 Id. On February 7, 2011, a jury returned a
guilty verdict following a one-day trial at which the victim, the victim’s sister,
and a hospital nurse testified. Trial Proc. 130:12–15 (Docket Record at 4)
(Trial Tr.). On February 9, 2011, the State Court sentenced Mr. Theriault to
sixteen years of imprisonment, with all but eight years suspended, to be
followed by a term of six years of probation. J. and Commitment (Docket
Record at 5).
Mr. Theriault filed a notice of appeal and an application for leave to
appeal his sentence on February 14, 2011.

(Docket Record at 6).

On

February 17, 2011, Mr. Theriault retained a new attorney and filed a motion
for a new trial. (Docket Record at 7). In June 2011, the Sentence Review
Panel of the Maine Law Court denied Mr. Theriault’s application for leave to
appeal his sentence. State v. Theriault, No. SRP-11-104 (Docket Record at 2).
On August 19, 2011, the Law Court dismissed Mr. Theriault’s appeal from
the conviction due to lack of prosecution. State v. Theriault, No. ARO-11-103,
Order Dismissing Appeal (Docket Record at 2). On October 31, 2012, the trial
court denied Mr. Theriault’s motion for a new trial. State v. Theriault, No.

Mr. Theriault asserts that during the State’s opening and closing arguments, the
prosecutor improperly offered an expert medical opinion to the jury. Pet. Under 28 U.S.C. §
2254 for Writ of Habeas Corpus by a Person in State Custody at 11 (ECF No. 1) (Habeas Pet.);
Obj. to Recommended Decision on 28 U.S.C § 2254 at 8 (ECF No. 10) (Pet.’s Obj.).
Specifically, he alleges that the prosecutor told the jury that the State was not required to
prove that Mr. Theriault “actually penetrated” the victim. Habeas Pet. at 11; Pet.’s Obj. at 8.
The record reveals that the State’s attorney described the legal definition of penetration and
acknowledged its obligation to prove penetration in both its opening and closing arguments.
Trial Proc. 12:20–13:7; 117:6–18 (Docket Record at 4) (Trial. Tr.). Contrary to Mr.
Theriault’s assertion, by making these comments, the State’s attorney did not provide an
expert medical opinion.
3

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CARSC-CR-2008-00262, Order Den. Mot. for New Trial (Docket Record at 8).
B.

State Post-Conviction Review

On August 17, 2012, Mr. Theriault filed a pro se petition for postconviction review with the state trial court. Theriault v. State, No. CARSCCR-2012-00437, Pet. for Post-Conviction Rev. (Docket Record at 1).

On

November 5, 2012, Mr. Theriault retained his appellate counsel to represent
him in the post-conviction proceeding, and on June 11, 2013, Mr. Theriault
filed an amended petition alleging ineffective assistance of trial counsel.
Post-Conviction Rev. Am. Pet. (Docket Record at 2).
The trial court held an evidentiary hearing on the petition on
September 19, 2013. Evid. Hr’g (Docket Record at 2); Tr. (Docket Record at
2) (Evid. Tr.).

Both Mr. Theriault and his trial counsel, Attorney Allen

Hanson, testified at the evidentiary hearing. Id. Following the hearing, on
March 11, 2014, the trial court denied the petition. Decision (Docket Record
at 2). In its decision, the court summarized Mr. Theriault’s allegations of
ineffective assistance as follows: (1) failure to hire a private investigator; (2)
failure to subpoena critical witnesses at trial; (3) failure to obtain an expert
witness regarding the issue of suggestive interviewing of the minor victim; (4)
failure to obtain an expert witness regarding the lack of physical findings; (5)
failure to obtain exculpatory agency records; (6) failure to challenge the
competency of the minor victim to testify; (7) failure to obtain character
evidence pertaining to Mr. Theriault; (8) failure to impeach the minor victim

4

based on inconsistencies in her allegations; and (9) failure to adequately
counsel Mr. Theriault regarding his decision not to testify. Id. at 3–9. The
trial court concluded that the prejudice prong of the test established in
Strickland v. Washington, 466 U.S. 668 (1984), controlled the outcome, and
that Mr. Theriault had not demonstrated prejudice with respect to any of the
allegations of ineffective assistance of counsel. Id. On March 31, 2014, Mr.
Theriault requested discretionary review of the post-conviction decision from
the Law Court. Theriault v. State, No. Aro-14-158, Notice of Appeal (Docket
Record at 1).
Meanwhile, on June 2, 2014, the Supreme Judicial Court issued an
order in a bar disciplinary matter regarding Attorney Hanson, Mr.
Theriault’s trial counsel. Bd. of Overseers of the Bar v. Hanson, No. BAR-1321 (June 2, 2014) (Mead., J.). The Maine Supreme Judicial Court made a
number of findings based on stipulated facts. Id. at 1–2, 5–6. In addition,
the Maine Law Court concluded:
Attorney Hanson has acknowledged various errors on his part in
relation to his representation of Mark Theriault.
He
understands and agrees that he did not utilize the courtapproved private investigator to independently investigate the
case or to pursue the areas of investigation suggested by his
client prior to the trial. He understands and agrees that he did
not spend sufficient time with his client to prepare him for the
trial, or to make his decision regarding whether he would testify.
He also understands and agrees that he did not request
additional time to prepare his case for sentencing, or to prepare
his client and the other witnesses for the sentencing proceeding.
Attorney Hanson understands and agrees that by those failures,
he failed to reasonably communicate with his client; to provide
competent representation; or to act with reasonable diligence in
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his client’s defense. Although his actions were not intentional
attempts to violate the Maine Rules of Professional Conduct
they nevertheless constitute violations of Rules 1.1, 1.3, 1.4 and
8.4(a)(d).
Id. at 6–7.
On June 16, 2014, the Law Court issued a certificate of probable cause,
permitting Mr. Theriault to appeal from the trial court’s post-conviction
ruling.

Theriault v. State, No. Aro-14-158 (Docket Record at 2).

On

December 10, 2015, the Law Court vacated the trial court’s judgment and
remanded the case for further proceedings. Theriault v. State, 2015 ME 137,
at ¶ 30, 125 A.3d 1163.4 As an initial matter, the Law Court concluded that
Mr. Theriault was not entitled to a presumption of prejudice; rather, Mr.
Theriault was required to prove that counsel’s alleged errors caused actual
prejudice.

Id. ¶¶ 16–18.

The Law Court also held that the trial court

misapplied the prejudice prong of the Strickland test:
By employing only a portion of the Strickland principle, the
court in effect employed the outcome-determinative test rejected
in Strickland because it determined only whether the outcome
was likely different than it would have been if the petitioner had
been properly represented, without considering whether the
guilty verdict and resulting conviction were unreliable and not
worthy of confidence.
Theriault v. State, 2015 ME 137, at ¶ 25, 125 A.3d 1163.
Nevertheless, the Law Court noted that for several of Mr. Theriault’s
challenges to Attorney Hanson’s conduct, Mr. Theriault offered no evidence of

The Law Court decided the case on October 29, 2015, and corrected the decision on
December 10, 2015. Theriault v. State, 2015 ME 137, 125 A.3d 1163.
4

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prejudice. Id. ¶ 26. Therefore, the Law Court concluded that Mr. Theriault
“failed to demonstrate entitlement to post-conviction relief regardless of how
one might characterize the element of prejudice, because the complete
absence of any evidence of prejudice would preclude any prospect of proving
that the guilty verdict was unreliable and not entitled to confidence.” Id.
However, the Law Court concluded that two of Mr. Theriault’s claims
of prejudice warranted reconsideration under the proper standard, including
Mr. Theriault’s claim that counsel failed to impeach the victim by presenting
evidence that he did not have a PlayStation at his house, as well as his claim
that counsel failed to present any evidence of prior exculpatory statements
that the victim made during her Spurwink Child Abuse evaluation. Id. ¶¶
27–29. Consequently, the Law Court remanded the matter to the trial court
for further proceedings. Id. ¶ 30.
In December 2015, the parties each submitted written argument on
the issues remanded to the trial court. Theriault v. State, No. CARSC-CR2012-00437, Post-Conviction Rev. Pet./Appellant’s Br. (Docket Record at 3);
Theriault v. State, No. CARSC-CR-2012-00437, State’s Answer to Remand
Order (Docket Record at 3).

On March 3, 2016, the trial court issued a

decision in which it applied both prongs of the Strickland test to the claims
regarding the PlayStation and the Spurwink evidence. Theriault v. State,
No. CARSC-CR-2012-00437, Recons. Decision (Docket Record at 3) (Recons.
Dec.). The trial court concluded that counsel’s failure to impeach the victim

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by presenting evidence about the PlayStation or the Spurwink evaluation
was not constitutionally deficient and did not prejudice Mr. Theriault. Id. at
2–4.
Mr. Theriault requested discretionary review of the trial court’s
decision. Theriault v. State, No. Aro-16-190, Notice of Appeal (Docket Record
at 2). Counsel was appointed, and Mr. Theriault argued that the trial court
once again had misapplied the Strickland standard. Theriault v. State, No.
Aro-16-190, Mem. in Supp. of Certificate of Probable Cause at 1–2 (Docket
Record at 2). Mr. Theriault asserted that trial counsel’s failure to impeach
the victim based on her inconsistent statements constituted deficient
performance and that the cumulative effect of counsel’s errors prejudiced Mr.
Theriault. Id. at 7–13.
On September 19, 2016, the Law Court denied discretionary review.
Theriault v. State, No. Aro-16-190, Order Den. Certificate of Probable Cause
(Docket Record at 3). The Law Court concluded, “After review of the record,
which demonstrates that Theriault received effective assistance of counsel
throughout the entirety of the proceeding, the Court has determined that no
further hearing or other action is necessary to a fair disposition.” Id.
C.

Federal Post-Conviction Review

On November 21, 2016, Mr. Theriault filed a § 2254 petition with this
Court.5 Pet. Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
Mr. Theriault attests that he placed his § 2254 petition in the prison mailing system
on November 15, 2016. Habeas Pet. at 18.
5

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State Custody (ECF No. 1) (Habeas Pet.).6 The State answered on December
26, 2016. Resp’t’s Answer to Pet. for Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 (ECF No. 4). Mr. Theriault replied on January 9, 2017. Pet.’s
Reply to Att’y Gen.’s Answer Pursuant to 28 U.S.C. § 2254 (ECF No. 7).
On May 19, 2017, the United States Magistrate Judge issued a
recommended decision in which he recommended that the Court dismiss Mr.
Theriault’s petition for habeas relief and that the Court deny a certificate of
appealability. Recommended Decision on 28 U.S.C. § 2254 Pet. (ECF No. 9)
(Rec. Dec.). Mr. Theriault filed an objection to the Recommended Decision on
June 2, 2017. Obj. to Recommended Decision on 28 U.S.C. § 2254 (ECF No.
10) (Pet.’s Obj.).
II.

LEGAL STANDARD
As the Magistrate Judge’s Recommended Decision is on an application

for post-trial relief made by an individual convicted of a criminal offense, this
Court reviews the Recommended Decision de novo. 28 U.S.C. § 636(b)(1)(B).
A person in custody pursuant to the judgment of a state court may
apply to a federal district court for a writ of habeas corpus “only on the
ground that he is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(a). A federal court may not
grant habeas relief based on claims that were adjudicated on the merits in
state court proceedings unless the state adjudication:
A word on pagination. For some filings, such as Mr. Theriault’s habeas petition, the
pagination of the ECF filing system differs from the pagination of the document itself. The
Court’s citations are to the ECF pagination.
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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.
28 U.S.C. § 2254(d)(1)–(2).
In this case, both § 2254(d)(1) and § (d)(2) apply to this Court’s review
of the state adjudication.

The Court applies § 2254(d)(2) to the state’s

conclusion that no evidence exists to support most of Mr. Theriault’s
allegations of ineffective assistance. See Brumfield v. Cain, __U.S.__, __, 135
S. Ct. 2269, 2276–77 (2015) (applying section 2254(d)(2) to a state court’s
finding that “no evidence” existed to support a habeas claim). The Court
applies § 2254(d)(1) to the state’s determination that Mr. Theriault’s claims
regarding the PlayStation and the Spurwink evaluation fail to establish
ineffective assistance of counsel.
Section 2254(d)(1) “involves the layering of two standards. The habeas
question of whether the state court decision is objectively unreasonable is
layered on top of the underlying standard governing the constitutional right
asserted.” Winfield v. O’Brien, 775 F.3d 1, 8 (1st Cir. 2014) (quoting Hurtado
v. Tucker, 245 F.3d 7, 16 (1st Cir. 2001)). “It is settled that a federal habeas
court may overturn a state court’s application of federal law only if it is so
erroneous that there is no possibility fairminded jurists could disagree that
the state court’s decision conflicts with this Court’s precedents.” Nevada v.

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Jackson, __U.S.__,__, 133 S. Ct. 1990, 1992 (2013) (internal quotation marks
omitted) (citing Harrington v. Richter, 562 U.S. 86, 102 (2011)).

“The

ultimate question on habeas . . . is not how well reasoned the state court
decision is, but whether the outcome is reasonable.” Hurtado, 245 F.3d at 20.
“A decision can still be reasonable even if the reviewing court thinks it is
wrong . . . .” Teti v. Bender, 507 F.3d 50, 57 (1st Cir. 2007) (citing Terry
Williams v. Taylor, 529 U.S. 362, 411 (2000)).
To succeed on a post-conviction claim of ineffective assistance of
counsel, the petitioner must demonstrate that “counsel’s representation fell
below an objective standard of reasonableness,” and that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland,
466 U.S. at 688, 694. In other words, the petitioner must demonstrate both
deficient performance of counsel as well as prejudice to the petitioner. To
establish ineffective assistance of counsel, counsel’s representation must have
resulted in “a breakdown in the adversary process that renders the result
unreliable.” Id. at 687. In determining whether counsel provided ineffective
assistance, a court must consider “the totality of the evidence.” Id. at 695.
“[A] verdict or conclusion only weakly supported by the record is more likely
to have been affected by errors than one with overwhelming record support.”
Id. at 696.

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III.

DISCUSSION
The Court must be mindful of the limited scope of its review under §

2254. The Court’s task is constrained. It is not to pronounce whether it
agrees with the state court’s rulings; rather, it is to assess the reasonableness
of the outcome. Based on its review of the record below, the Court is satisfied
that the state adjudication involved a reasonable application of federal law
and that the decision was based on a reasonable determination of the facts in
light of the evidence presented.

Accordingly, the Court concurs with the

recommendation of the Magistrate Judge and denies Mr. Theriault’s petition
under § 2254.
In his petition, Mr. Theriault alleges that trial counsel was ineffective
by (1) failing to cross-examine the alleged victim regarding whether Mr.
Theriault had a PlayStation at his house; (2) failing to cross-examine the
minor victim regarding her statements to the Spurwink evaluator and other
inconsistencies in her allegations; (3) failing to communicate sufficiently; (4)
instructing Mr. Theriault not to testify and failing to prepare him to testify;
(5) failing to hire a private investigator to look into alternative suspects
despite receiving authorization from the court to retain an investigator; (6)
failing to obtain an expert witness regarding the lack of physical findings; (7)
failing to obtain an expert witness regarding the issue of suggestive
interviewing of the minor victim; (8) failing to subpoena critical witnesses at

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trial; (9) failing to obtain potentially exculpatory agency records; and (10)
failing to challenge the competency of the minor victim to testify. Habeas Pet.
at 5, 7, 10–11.
The state courts concluded that Mr. Theriault failed to prove that he
suffered any prejudice as a result of the first two allegations. Recons. Dec. at
2–4; Order Den. Certificate of Probable Cause at 1.

As to the remaining

claims, the state courts concluded that Mr. Theriault provided no evidence of
how he was prejudiced by counsel’s alleged failures. Theriault v. State, 2015
ME 137, at ¶ 26; Recons. Dec. at 1, n.1. The Court addresses each conclusion
in turn, followed by a discussion of Attorney Hanson’s suspension
A.

Failure to Cross-Examine the Victim Regarding the
PlayStation

At trial, the victim testified that she played on Mr. Theriault’s
PlayStation console the day he sexually assaulted her. Trial Tr. 73:11–14,
77:15–19. Mr. Theriault alleges that upon hearing this, he told Attorney
Hanson that he did not own a PlayStation. Evid. Tr. 151:10–152:13. Mr.
Theriault asserts that Attorney Hanson was ineffective because he failed to
impeach the victim based on her testimony about the PlayStation. Habeas
Pet. at 10.
After the Law Court remanded the case for further proceedings on the
PlayStation issue, the trial court concluded that Mr. Theriault failed to
establish either the performance or prejudice prong of the Strickland test.
Recons. Dec. at 2–3.

The trial court noted that counsel had already
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established that the victim was exposed to suggestive interviewing
techniques and that the victim previously gave inconsistent accounts of the
assault. Id. at 2. As such, the trial judge concluded that “trial counsel was
justified in concluding that he had . . . achieved his objective of impeachment
and at that point there was more to lose than gain by keeping a sympathetic
child victim on the witness stand any longer than was absolutely necessary.”
Id. at 2.

The trial court further concluded that “trial counsel’s tactical

decision to get a sympathetic witness off the stand at the earliest possible
time was well within the bounds of sound professional judgment. Such trial
strategy is not constitutionally deficient.” Id.
The trial court next turned to whether, even if counsel’s performance
were deficient, Mr. Theriault had met the prejudice prong of Strickland.
First, the trial judge observed that the Maine Supreme Judicial Court had
not concluded that trial counsel’s performance was so deficient “that
prejudice could be presumed without proof.” Id. The Superior Court Justice
framed the question: “whether trial counsel’s alleged deficient performance
was such that it so undermined the proper functioning of the adversarial
process that the trial result cannot be relied upon with confidence.” Id. at 3.
The trial judge observed that Mr. Theriault’s claim “relates to a failure of
cross examination on what this court regards as a relatively minor point
pertaining to a collateral issue.”

Id.

The trial court concluded that Mr.

Theriault “has not met his burden of proof under either the ‘outcome

14

determinative’ test or the ‘reasonable probability’ test as articulated in the
Law Court’s mandate.” Id.
The Law Court, upon review of the record, concluded that the trial
court did not err in denying Mr. Theriault’s request for post-conviction relief.7
Order Den. Certificate of Probable Cause at 1. The Maine Supreme Judicial
Court wrote that:
After a review of the record, which demonstrates that Theriault
received effective assistance of counsel throughout the entirety of the
proceeding, the Court has determined that no further hearing or other
action is necessary to a fair disposition.
Id.
This Court concludes that the state court’s application of Strickland
was reasonable. Mr. Theriault makes no argument to the contrary. The
record indicates that at trial, counsel provided the jury reason to question the
victim’s testimony. Specifically, counsel established that the victim’s sister
had posed suggestive questions to the victim following the assault, Trial Tr.
31:2–6, 34:8–35:24, and that the victim gave an inconsistent account of the
assault to the hospital nurse. Trial Tr. at 58:17–24, 59:21–23. Counsel also

Regarding both the PlayStation and the Spurwink issues, the decision under review
for purposes of 28 U.S.C. § 2254(d)(1) is the Law Court’s Order Denying a Certificate of
Probable Cause, because the Law Court’s decision is the final state court adjudication on the
merits. See Greene v. Fisher, 565 U.S. 34, 39–40, 132 S. Ct. 38, 45 (2011). However, the First
Circuit has noted that on habeas review, the federal court may “supplement the state courts’
factual findings with other portions of the record that are consistent with them.” Clements v.
Clarke, 592 F.3d 45, 47 (1st Cir. 2010). “Thus, although the federal court may consider
whether the state trial court’s factual findings, and the judgment based on those findings,
constitute an objectively reasonable application of [federal law], the federal court reviews the
Law Court’s decision and the record as a whole.” Nelson v. Liberty, No. 1:16-cv-261-GZS,
2016 U.S. Dist. LEXIS 170641 (D. Me., Dec. 9, 2016)., at *10, n.4 (citing Hurtado, 345 F.3d at
18 (1st Cir. 2001)).
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explained at the post-conviction evidentiary hearing that some of the jurors
were crying during the victim’s testimony, and therefore, he did not want to
prolong the length of time that the victim was on the stand. Evid. Tr. 50:2–
18. Based on this record, the Court concludes that the state adjudication did
not involve an unreasonable application of the Strickland standard.
B.

Failure to Impeach Based on Inconsistent Allegations

In addition, Mr. Theriault asserts that counsel was ineffective because
he failed to impeach the victim based on her inconsistent renditions of the
assault. Habeas Pet. at 11. The record indicates that at different times, the
victim stated that Mr. Theriault assaulted her in the bedroom, in the
bathroom, and in the living room, and with her clothes on and with her
clothes off. Evid. Tr. 31:14–35:10. Moreover, at one point, the victim told an
examiner at the Spurwink Child Abuse Program that Mr. Theriault did not
assault her at all; later, however, she informed the examiner that Mr.
Theriault had, in fact, assaulted her. Id. 35:8–20.
After the Law Court remanded the case, the trial court concluded that
Mr. Theriault failed to satisfy either the performance or the prejudice prongs
of the Strickland test. Recons. Dec at 2–3. Of the inconsistent statements to
the Spurwink examiner, the trial court stated:
The Petitioner’s suggestion that counsel was ineffective for not
introducing that evidence fails to recognize that such evidence
would not have been introduced on an a la carte basis. It seems
a certainty that had trial counsel sought to introduce that part
of the evidence that might have been helpful, the prosecution
would then have introduced the rest of that evidence and the
16

last word would have been that during that same Spurwink
interview, the child victim did [indeed] report that the Petitioner
had sexually assaulted her. This would not have been helpful.
Recons. Dec at 3. The trial court recognized that different lawyers may have
opted to introduce the potentially exculpatory Spurwink evidence but that
Attorney

Hanson’s

failure

to

do

so

did

not

demonstrate

“serious

incompetency, inefficiency, or inattention amounting to performance below
what might be expected from an ordinary fallible attorney.” Id. at 3–4.
Moreover, the trial court determined that Mr. Theriault failed to prove
prejudice because the jury already had two bases to question the victim’s
testimony.

Id. at 4.

First, counsel established that the victim told the

hospital nurse that the touching had occurred over the clothing, and not
under as the victim testified at trial.

Trial Tr. at 58:17–24, 59:21–23.

Second, counsel offered evidence that the victim’s sister posed leading
questions to the victim following the assault. Trial Tr. 31:2–6, 34:8–35:24.
Therefore, the trial court concluded that counsel’s failure to introduce
evidence of the additional inconsistencies did not call the reliability of the
verdict or conviction into question.

Recons. Order at 4.

As with the

PlayStation issue, the Law Court agreed with the trial court that counsel had
not provided ineffective assistance on this issue either. Order Den. Certificate
of Probable Cause at 1.
The Court agrees with the Magistrate Judge that the Spurwink
evidence “was both inculpatory and exculpatory.” Rec. Dec. at 16. As the

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trial court pointed out, counsel could have cross-examined the victim about
her statement to the Spurwink examiner that Mr. Theriault did not assault
her, but on redirect, the prosecution could have introduced evidence that
during the same interview, the victim alleged that Mr. Theriault had, in fact,
assaulted her. Additionally, counsel testified at the evidentiary hearing that
the jurors’ reactions to the victim’s testimony prompted him to minimize the
amount of time the victim spent on the stand. Evid. Tr. 50:2–18.
A review of the “totality of the evidence” indicates that there is a
further reason why counsel chose not to introduce evidence of the victim’s
inconsistent statements. At the evidentiary hearing, counsel testified that he
was aware of allegations that Mr. Theriault had abused the victim on more
than one occasion. Id. 77:2–24. He acknowledged that if he pressed the
victim regarding her previous inconsistent descriptions of the offense, then
the prosecution would have been able to introduce evidence to prove that her
inconsistent statements actually referred to other instances of sexual assault
at the hands of Mr. Theriault. Id. 82:2–24. Because counsel had legitimate
reasons not to press the victim on her prior inconsistent statements and
because other evidence already raised questions about the reliability of the
victim’s testimony, the state court’s determination that Mr. Theriault failed
to satisfy the performance and prejudice prongs of Strickland was not
unreasonable.
C.

Claims Dismissed for Lack of Evidence

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The Law Court dismissed the rest of Mr. Theriault’s allegations of
ineffective assistance because Mr. Theriault “offered no evidence whatever of
how he was prejudiced by those alleged failures.” Theriault, 2015 ME 137, ¶
26, 125 A.3d 1163. This Court agrees with the Law Court’s assessment and
concludes that the Law Court’s decision was based on a reasonable
determination of the facts for the reasons set forth in the Magistrate Judge’s
Recommended Decision. Rec. Dec. 17–21. However, in comparing the Law
Court’s decision with Mr. Theriault’s allegations, the Court has identified two
claims that warrant further discussion.
1.

Failure to Hire a Private Investigator

Mr. Theriault alleges that counsel was ineffective because he failed to
hire a private investigator—despite obtaining state funds to do so—to explore
whether the victim had a motivation to lie. Post-Conviction Rev. Am. Pet. at
1–2; Habeas Pet. at 5, 7. The trial court held that Mr. Theriault failed to
articulate what the victim’s motive might have been and that he failed to
provide evidence of how a private investigator might have facilitated securing
that information. Decision at 3–4. The Law Court agreed that Mr. Theriault
failed to present “any evidence about what information a private investigator
might have found to provide an exculpatory explanation for the victim’s
accusations.” Theriault, 2015 ME 137, ¶ 26, 125 A.3d 1163 (emphasis in
original).
It is true that in the post-conviction evidentiary hearing, counsel

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acknowledged that Mr. Theriault told him that he suspected the victim was
being abused at home by either her brother—who Mr. Theriault believed may
have been sexually active with his other sister—or her father—who Mr.
Theriault suspected was a sexual offender. Evid. Tr. 18:19–21:25. Based on
Mr. Theriault’s suspicions, Attorney Hanson wrote in his notes that the
defense “may want [a] private investigator,” and he obtained funding for an
investigator from the court.

Id. 20:22–24, 41:8–20.

Attorney Hanson

testified that he had “potential things for an investigator to do, [as well as]
specific names of people that Mr. Theriault wanted interviewed.” Id. 21:22–
25. Even so, as the Maine Supreme Judicial Court implied, inculpating the
victim’s father and brother would not have exculpated Mr. Theriault.
Occasionally, the prosecution in a sex offense involving a minor will argue
that the victim’s description of sexual acts is beyond what one would expect a
child to know, unless she had in fact been subjected to the acts. Here, no
such argument was made by the state prosecutor at the trial. Trial Tr. 6:19–
13:11 (State’s Opening Statement); 114:15–118:11 (State’s Closing Argument);
124:4–127:4 (State’s Rebuttal). Nor did the defense allude to this argument.
Id. 13:16–15:23 (Defense Opening Statement); 118:14–124:1 (Defense Closing
Argument).
Another possible defense argument could have been that the victim
mistook Mr. Theriault for her father and brother. But Mr. Theriault has
never made this argument and as the victim was six years old at the time of

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the incident and the circumstances of the incident do not indicate any reason
for her to have confused Mr. Theriault with her father or brother, this
argument does not appear to apply.
In sum, it is difficult to understand what Mr. Theriault would have
gained had the private investigator confirmed that either the victim’s father
or brother had improper sexual contact with the victim since their actions,
even if true, would not have somehow justified Mr. Theriault’s alleged
actions.
Regardless of these issues, the Court still concludes that Mr. Theriault
has failed to demonstrate “that counsel’s representation fell below an
objective standard of reasonableness,” and that the “errors of counsel . . .
actually had an adverse effect on the defense.” Strickland, 466 U.S. at 688,
693. With respect to the performance prong, “counsel has a duty to make
reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary. In any effectiveness case, a particular
decision not to investigate must be directly assessed for reasonableness in all
the circumstances, applying a heavy measure of deference to counsel’s
judgments.” Id. at 691.
Here, Attorney Hanson testified at the evidentiary hearing that he did
not wish to introduce evidence on Mr. Theriault’s theory regarding the
victim’s motivation to lie because it would have opened the door to damaging
statements attributed to Mr. Theriault in a police report. Evid. Tr. 85:8–14.

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At the evidentiary hearing, Attorney Hanson was asked about the police
investigator’s discussions with Mr. Theriault.

Id. 84:13–85:14.

Attorney

Hanson confirmed that the police report indicated that Mr. Theriault had not
started off with allegations about the family and that Mr. Theriault had said:
“If they want to do shit like that, I want to do some shit, too.” Id. 84:22–85:1.
Attorney Hanson confirmed that he was concerned that if he opened the door
to alternative suspects, his statements to the police investigator would have
become admissible. Id. 85:8–14 (“It certainly could be brought in. Yes”). In
fact, none of Mr. Theriault’s statements to the police investigator was
introduced at trial. Id. (Q. “To your recollection and understanding, did the
State get any of those statements before the jury? A. The statements of
Mark? Q. Correct. A. No, I don’t believe they did”). Thus, Attorney Hanson
has identified a legitimate reason not to pursue the investigation that Mr.
Theriault suggested.
The Court, applying a “heavy measure of deference to counsel’s
judgment” concludes that Mr. Theriault’s decision not to retain an
investigator was reasonable and that counsel’s performance fell within “the
wide range of professionally competent assistance.” Strickland, 466 U.S. at
691.
Neither has Mr. Theriault demonstrated that counsel’s failure to hire a
private investigator was prejudicial. Mr. Theriault must show that counsel’s
performance undermines confidence in the outcome of the case and renders

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that outcome unreliable.

Id. at 687.

Yet Mr. Theriault offers only an

unsupported theory that the victim’s brother or father were the actual
perpetrators. Such bare speculation as to what the investigation may have
uncovered is insufficient to call the reliability of the conviction into question.
Therefore, the Court concludes that Mr. Theriault has failed to allege
ineffective assistance of counsel based on Attorney Hanson’s failure to hire a
private investigator.
2.

Failure to Obtain Administrative Records

Additionally, Mr. Theriault faults counsel for failing to apply for a
“Clifford Order” to seek an in-camera review of the victim’s Department of
Health and Human Services (DHHS) record. Decision at 6; Habeas Pet. at 7.
The trial court stated that Mr. Theriault failed to demonstrate that such
records exist, or if they do, what exculpatory evidence they might contain.
Dec. at 6. The Law Court agreed that Mr. Theriault “offered no evidence
whatever of how he was prejudiced” by counsel’s failure to request the
records. Theriault, 2015 ME 137, ¶ 26, 125 A.3d 1163.
Attorney Hanson’s testimony at the post-conviction evidentiary
hearing provided a clue about what the DHHS records might contain.
Attorney Hanson testified that the victim’s Spurwink evaluation record
suggested that the victim “had some type of behavioral or social-type issues.”
Evid. Tr. 37:2–5. Presumably, Mr. Theriault suspects that DHHS records
contain additional information about the victim’s behavioral issues.

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Nevertheless, this testimony falls short of establishing that Attorney
Hanson provided ineffective assistance. As the trial court pointed out, there
is no indication that DHHS actually compiled records on the victim. Further,
there is no evidence that the DHHS records, if they exist, relate to the
behavioral issues mentioned in the Spurwink evaluation. Indeed, it is not
even clear what behavioral problems the Spurwink evaluators identified and
how those issues might have affected the criminal proceedings in this case.
Without more, the Court concludes that the state court adjudication did not
result in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented.
D.

Relevance of Subsequent Attorney Discipline

Mr. Theriault points out that the Maine Supreme Judicial Court
disciplined his attorney for the way he conducted Mr. Theriault’s defense, but
later concluded that his lawyer rendered effective assistance of counsel for
purposes of the Sixth Amendment:
It is quite obvious that trial counsel’s performance did fall below
the professional norm of reasonableness. Trial counsel being
disciplined for it speaks for itself. He was also found guilty of
violating three other Maine Rules of Professional Conduct.
There is simply no possibility that any one person can say that
this trial counsel performed his legal duties and legal
responsibilities to me as my attorney effectively, when in all
actuality he has in fact been disciplined by the Law Court for
that exact same ineffective/unreasonable performance.
Pet’r’s Obj. at 4. Mr. Theriault’s dissatisfaction is understandable, but under
the law, there is no contradiction between the Maine Supreme Judicial

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Court’s conclusion that his attorney’s performance was both deserving of
discipline and constitutionally sufficient.
The legal standards for a violation of the Sixth Amendment right to
counsel are not identical to the standards for disciplining members of the
legal profession. Bar association standards and rules of professional conduct
“are guides to determining what is reasonable” for purposes of an ineffective
assistance of counsel claim, “but they are only guides.” Strickland, 466 U.S.
at 688.

While they both involve the conduct of attorneys, the Sixth

Amendment and bar oversight standards do not serve exactly the same
purposes.

The right to effective assistance “ensure[s] that criminal

defendants receive a fair trial” in their particular case, while bar oversight
bodies seek to “improve the quality of legal representation” more generally.
Id. at 689.
In other words, attorneys can fall short of the local rules of professional
conduct, subjecting them to discipline, without necessarily being so deficient
that their performance undermined the reliability of the trial.

As the

Supreme Court explained in Strickland, defense counsel enjoy the benefit of a
“strong presumption” that their conduct “falls within the wide range of
reasonable professional assistance.” 466 U.S. at 689. The Supreme Court
devised these standards in part to avoid “intrusive post-trial inquiry into
attorney performance or of detailed guidelines for its evaluation” because to
do so would “encourage the proliferation of ineffectiveness challenges.” Id. at

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690. The Strickland Court expressed concern that “[i]ntensive scrutiny of
counsel and rigid requirements for acceptable assistance could dampen the
ardor and impair the independence of defense counsel, discourage the
acceptance of assigned cases, and undermine the trust between attorney and
client.” Id.
Even though it may seem counterintuitive, the fact that the attorney
was determined to have violated the rules of professional conduct in
representing a defendant is one factor in determining whether the lawyer
violated the Strickland standards, but it is not determinative. Even when
the Defendant’s attorney was disciplined or disbarred, most courts have
generally still required criminal defendants to satisfy the full Strickland tests
of performance and prejudice in order to establish an ineffective assistance
claim. See e.g. Crawford v. Lampert, 98 F. App'x 636, 638 (9th Cir. 2004)
(concluding that “disbarment, by itself, does not establish a claim of
ineffective assistance of counsel”); United States v. Mitchell, 216 F.3d 1126,
1132 (D.C. Cir. 2000) (holding that “the fact of suspension does not, by itself,
render counsel ineffective under the Sixth Amendment. Instead, the normal
Strickland rule applies and a defendant must meet his burden of showing
deficient performance at trial which resulted in prejudice”); Reese v. Peters,
926 F.2d 668, 670 (7th Cir. 1991) (noting the difference between “[t]he
constitutional question” about the “advocate's competence” and disbarment,
which can occur for other reasons, including technical violations) (emphasis

26

in original);

Waterhouse v. Rodriguez, 848 F.2d 375, 383 (2d Cir. 1988)

(declining to extend per se ineffective assistance rule to disbarment cases,
and limiting it to cases of conflict of interest or egregious conduct); United
States v. Mouzin, 785 F.2d 682, 697 (9th Cir. 1986) (“the infliction of
discipline upon an attorney previously qualified and in good standing will not
and should not transform his services into ineffective assistance”).
IV.

CONCLUSION
Having reviewed and considered the United States Magistrate Judge’s

recommended decision, as well as Mr. Theriault’s objections, the Court
concurs with the recommendations of the Magistrate Judge for the reasons
set forth in his Recommended Decision and in this Order.

The Court

determines that no further proceedings are necessary and denies Mr.
Theriault’s 28 U.S.C. § 2254 petition. Because the state adjudication did not
result in a decision that was contrary to, or involved an unreasonable
application of federal law, and because the state proceedings did not result in
a decision that was based on an unreasonable determination of the facts, the
Court concludes that Mr. Theriault is not entitled to habeas relief.
1. It is therefore ORDERED that the Recommended Decision (ECF
No. 9) of the Magistrate Judge be and hereby is AFFIRMED.
2. Accordingly, it is hereby ORDERED that Mark Theriault’s Petition
Under 28 U.S.C. § 2254 (ECF No. 1) be and hereby is DENIED.
3. It is further ORDERED that no certificate of appealability should
issue in the event that Mark Theriault files a notice of appeal
because there is no substantial showing of the denial of a
constitutional right within the meaning of 28 U.S.C. § 2253(c)(2).
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SO ORDERED.

/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 31st day of August, 2017

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