Voisine v. Schweitzer

Raymond Voisine, Petitioner,

v.Alex Schweitzer, Respondent.

Case No. 2:10-cv-94

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

NORTHEASTERN DIVISION

Dated: February 17, 2011

ORDER

Petitioner Raymond Voisine ("Voisine") filed a petition for habeas relief under 28 U.S.C. § 2254 (Doc. #6) and a motion to appoint counsel (Doc. #7). The court conducted an initial review of the petition and ordered service upon the respondent. (Doc. #8). The respondent submitted the state court records, and filed a response (Doc. #23) and a motion to dismiss the habeas petition (Doc. #15). Voisine did not respond to the respondent's motion to dismiss, and the time for doing so has expired.

Background

Voisine pled guilty to one count of gross sexual imposition and the state district court entered its criminal judgment on October 22, 2004. Resp. Ex. 4A. Voisine was sentenced to five years of incarceration with four years suspended, and five years of supervised probation. Id. Voisine did not appeal the judgment. On March 30, 2005, the state district court entered an amended criminal judgment to accurately reflect the number of days of credit for time Voisine spent in custody prior to the court's criminal judgment. Resp. Ex. 4B.

In May 2005, the state petitioned to revoke Voisine's probation because he failed to successfully complete sex offender treatment while incarcerated, specifically because he would not accept responsibility for or admit to the offense. Voisine v. State, 2008 ND 91, ¶ 3, 748 N.W.2d 429, 431; Resp. Ex. 5A. After a revocation hearing, the state district court revoked Voisine's probation and resentenced him to ten years of imprisonment with five years suspended, and five years of supervised probation. Resp. Ex. 5B. Voisine did not appeal the judgment, but instead filed a petition for post-conviction relief, which was denied by the state district court. Resp Exs. 6, 7. Voisine appealed the denial of his petition to the North Dakota Supreme Court, which reversed the state district court, finding the district court erred in denying Voisine's petition for post-conviction relief because his conditions of probation did not become effective until Voisine was released from incarceration. See Voisine v. State, 2008 ND 91, 748 N.W.2d 429; Resp. Ex. 10.

After the North Dakota Supreme Court issued its opinion in May of 2008, Voisine was released from incarceration and the state petitioned to commit him as a sexually dangerous individual. Resp. Ex. 1. The state alleged Voisine sexually abused his grandson, fathered three children with two of his daughters, sexually abused his daughters as minors, conceived a child with a sixteen-year-old girl in Maine, and promoted obscenity to a minor by showing pornography to his grandson/son. In re Voisine, 2010 ND 17, ¶ 4, 777 N.W.2d 908, 910; Resp. Exs. 1, 17. The state district court found incest between a father and his daughters is "sexually predatory conduct" and because Voisine committed incest with his daughters, had sexual contact with his grandchildren, and is supported by his immediate family in his conduct, "it is a near certainty that he will once again engage in sexually predatory conduct without institutional treatment." Id. at ¶ 6, 777 N.W.2d at 910-911; Resp Exs. 14, 17. Voisine appealed the civil commitment order to the North Dakota Supreme Court, which found the state district court erred in finding incest between consenting adults is "sexually predatory conduct." Id. at ¶ 15, 777 N.W.2d at 913; Resp. Ex. 17. The North Dakota Supreme Court could not determine whether the remainder of the civil commitment order was adversely influenced by the error, so it reversed the state district court and remanded for further proceedings and findings of fact. Id.

On remand, the state district court found that Voisine's sexual contact with his grandson and with a sixteen-year-old girl is "sexually predatory conduct, " that Voisine suffers from a sexual, personality, or other mental disorder, and because Voisine committed incest with his daughters, had sexual contact with his grandchildren, impregnated a minor, and is supported by his immediate family in his conduct, "it is a near certainty that Voisine will once again engage in sexually predatory conduct without institutional treatment." Resp. Ex. 19. Voisine appealed the civil commitment order to the North Dakota Supreme Court, which summarily affirmed the order. State v. Voisine, 2010 ND 241, No. 20100163, 2010 WL 5416849 (N.D. Dec. 21, 2010). The North Dakota Supreme Court issued its mandate on January 26, 2010. See http: //www.ndcourts.gov/court/docket/20100163.htm.

In Voisine's habeas petition he states he was wrongly accused, arrested, and charged for a crime he did not commit, and alleges he was tried twice for the same crime. (Docs. #6, 6-1). It appears Voisine is challenging his civil commitment and his conviction for gross sexual imposition.

Discussion

I. Custody Requirement

Habeas corpus relief is only available to a prisoner if he is in custody. 28 U.S.C. § 2254(a). A habeas petition filed after a prisoner's sentence has expired fails to satisfy the custody requirement. Cotton v. Marbary, 674 F.2d 701, 703-04 (8th Cir. 1982). The respondentstates that Voisine is currently on supervised probation for his conviction for gross sexual imposition. (Doc. #23). Therefore, Voisine is considered in custody for purposes of habeas corpus. See Barks v. Armontrout, 872 F.2d 237, 238 (8th Cir. 1989).

II. Statute of Limitations

Voisine's petition is governed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which imposes a one-year statute of limitations for filing federal habeas petitions. AEDPA provides that the one-year statute of limitations starts to run on the date when the state court judgment becomes final by the conclusion of direct review or the expiration of time for seeking such review. 28 U.S.C. § 2244(d)(1)(A).

Voisine did not appeal from the judgment of conviction entered by the state district court on October 22, 2004, or the amended judgment of conviction entered on March 30, 2005. Therefore, under AEDPA the statute of limitations for filing his federal habeas petition began to run on the date of the expiration of time for seeking review. Rule 4(b) of the North Dakota Rules of Appellate Procedure provides that a party must file an appeal with the clerk of district court within thirty days after entry of the judgment. Thus, under 28 U.S.C. § 2244(d)(1)(A), Voisine's one-year clock started to tick for his claims on April 30, 2005.

According to the state court docket, Voisine filed his petition for state post-conviction relief on November 22, 2006, after the period of limitations had expired. The court notes that the petition challenged the revocation of Voisine's probation, and not his underlying conviction, which is the subject of his federal habeas petition. The petition for state post-conviction relief, even if timely filed, would not have tolled the statute of limitations. Similarly, all of Voisine's other state court proceedings relate to his civil commitment, and did not toll the statute of limitations.

Voisine's federal petition for habeas relief was not filed until October 29, 2010, long after the period of limitations had expired. Voisine's claims that he was wrongly accused, arrested, and charged for a crime he did not commit are barred from federal review.

The court recognizes that, as a matter of equity, this court may toll the AEDPA's statute of limitations. Baker v. Norris, 321 F.3d 769, 771 (8th Cir. 2003). "[E]quitable tolling is proper when there exist extraordinary circumstances beyond a prisoner's control that made filing a timely petition impossible or when the respondent's conduct has lulled the petitioner into inaction." Cross-Bey v. Gammon, 322 F.3d 1012, 1015 (8th Cir. 2003). Case law provides that "any invocation of equity to relieve the strict application of a statute of limitations must be guarded and infrequent, lest circumstances of individualized hardship supplant the rules of clearly drafted statutes." Id. (quoting Flanders v. Graves, 299 F.3d 974, 976 (8th Cir. 2002), cert. denied, 123 S.Ct. 1361 (2003)); see also Baker, 321 F.3d at 772 (stating that "risoners are not exempt from the principle that everyone is presumed to know the law and is subject to the law whether or not he is actually aware of the particular law of which he has run afoul"). Thus, equitable tolling provides an extremely limited opportunity for this court to consider an otherwise time-barred petition. Voisine has not demonstrated any justification for equitable tolling.

III. Exhaustion Requirement

Habeas corpus provides state prisoners the exclusive federal remedy for challenges to the fact or duration of their confinement. Franklin v. Webb, 653 F.2d 362, 363 (8th Cir. 1981) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). Section 2254(b)(1), 28 U.S.C., provides: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that (A) the applicant has exhausted the remedies available in the courts of the State; or (B) (i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

The doctrine of exhaustion dictates that "as a matter of comity, federal courts should not consider a claim in a habeas corpus petition until after the state courts have had an opportunity to act." Mellott v. Purkett, 63 F.3d 781, 784 (8th Cir. 1995) (quoting Rose v. Lundy, 455 U.S. 509, 515 (1982)). The exhaustion doctrine requires a state prisoner to "give state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

"To satisfy the exhaustion requirement, [Voisine] must show...