The opinion
STATE OF MAINE UNIFIED CRIMINAL DOCKET
KENNEBEC, ss. AUGUSTA
DOCKET NO. CR-14-0627
MICHAEL BOUCHER,
Petitioner
V. ORDER ON PETITION FOR
POST-CONVICTION REVIEW
STATE OF MAINE,
Respondent
Hearing was had on March 4, 2016 with respect to the Petitioner Michael
Boucher's (hereinafter "Petitioner") Petition For Post-Conviction Review as
amended on November 21, 2014. After the Court has had an opportunity to
review the multiple exhibits filed by both parties as well as the post-hearing
memoranda of counsel, the last being filed on April 27, 2016, the Court enters the
following Order based upon the reasoning as set forth below:
Procedural History:
1. Petitioner was indicted in 1988 by a Kennebec County Grand Jury
charging the Petitioner with the murder of Debra Dill, the crime having occurred
fifteen years earlier.
2. Petitioner was convicted in 1991 after a jury trial of the murder and
sentenced to life imprisonment with parole.
3. By decision dated September 3, 1994, the Law Court affirmed the jury
verdict, see State v. Boucher, 652 A.2d 76 (:tv1e. 1994).
4. Petitioner sought parole in 2001, 2006, 2011, and 2014 without success.
5. On June 4, 2014 Petitioner filed a collateral state petition for post
conviction review pursuant to 15 M.R.S. §§ 2121-2129. Two amendments to the
Petition were subsequently granted.
6. On March 4, 2016 a testimonial hearing was held before the
undersigned at which the Petitioner contended that his procedural due process
rights, his substantive due process rights, and his right to equal protection under
the law were all violated. The undersigned will d iscuss each contention below:
Alleged Procedural Due Process Violation:
7. Petitioner argues that his procedural due process rights were violated
when he was allegedly not told he could request to have his May 2014 parole
hearing recorded and when he was allegedly not told that he could request to
have a spokesperson represent him at his May 2014 hearing. The principal State
witness regarding these contentions, PPO Delahanty, testified that he had no
specific recollection that he affirmatively informed Petitioner that Petitioner
could request that the hearing be recorded and I or that Petitioner could request
to have a spokesperson represent him at the hearing, although it would have
been his usual practice to so inform a prisoner as much.
8. The undersigned notes that the Petitioner did sign the Hearing Notice
dated 2/7 /2014 that states that Petitioner had "discussed the criteria for parole
release outlined in the Initial Hearing Notice with a probation officer. .. "
presumably PPO Delahanty. (Petitioner's Exhibits Volume A at 3). The Initial
Hearing Notice informs recipients that they may request the hearing be taped
and that they be allowed to request a spokesperson speak on their behalf at the
hearing. (Petitioner's Exhibits Volume A at 5.)
9. The undersigned also notes that Petitioner had requested prior parole
hearings be taped and that Petitioner have a spokesperson represent him at prior
hearings. The undersigned finds Petitioner's explanation that he did not request
the May 2014 hearing to be recorded or transcribed because he "assumed it
would automatically been done because it had been done twice in the past" not
credible.
10. As the State points out in its memorandum, the United States
Supreme Court in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex,
442 U.S. 1 (1979) held that there is no constitutional or inherent right of a
convicted person to be conditionally released before the expiration of a valid
sentence: in short, there is no constitutional "right" to parole. Parole release
involves the denial of a liberty desired by inmates, and that decision depends
upon an amalgam of elements, some factual but many purely subjective
evaluations by a (parole) Board. Id.
11. However, although States are under no duty to offer parole to their
prisoners, Swarthout v. Cooke, 562 U.S. 216 (2011), if they decide to do so, then a
prisoner's "expectancy of release" created by a state parole board statute is
"entitled to some measure of constitutional protection ... " Greenholtz, supra, at 12.
12. The Petitioner in this case was provided an opportunity to be heard
and was provided with reasons why his parole was denied . The undersigned
agrees with the State when it argues that, even if Petitioner was not affirmatively
told by PPO Delahanty that Petitioner could request that the hearing be recorded
and that Petitioner could request a spokesperson, there is evidence in the record
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to support the conclusion that Petitioner knew or should have known that he had
those rights and chose not to invoke them. Further, Petitioner has failed to show
that he was prejudiced in any way, shape, or form by the possible failure to
technically comply with board rules. State statutes do not require that release
hearings be taped, or that the Par ole Board appoint a spokesperson to represent
the parolee, and Petitioner has not cited any authority for the proposition that
due process requires that hearings automatically be recorded and/ or
spokespersons be automatically appointed for pa.rnlees. The undersigned could
not find any such authority as well.
13. Based upon the above, the undersigned finds that Petitioner has
failed to prove any defect claimed and also that, assuming arguendo that such
defect(s) existed, that he was prejudiced thereby. See 15 M.R.S. § 2125; Mahaney
v. State, 610 A.2d 738 (Me. 1992). Accordingly, Petitioner's claim of a procedural
due process violation fails.
tVkged Substantive Due Process Violation:
14. The undersigned finds it to be more likely than not that Parole Board
member Anderson asked the Petitioner if he would be willing to waive any
future parole board release hearings in response to Petitioner's statement that he
would "do anything" to ease the victim's family pain if he could. Anderson's
rationale for asking such a question appears to be that Petitioner, although
contending he was contrite, did not appear to be so to Anderson. After hearing
of the impact of the death of the victim on the family as well as the .impact on the
family of "going through these (parole) hearings ... " coupled with Petitioner
cont nding he would "do anything" to ease the fan1ily's pain, Anderson felt it
appropriate to inquire of Petitioner whether he literally would "do anything,, to
ease the pain of the victim 1s family, namely to "stop putting the family through
th se parole board hearings ... "
15. The wisdom and I or appropdateness of asking such a question
certainly can be questioned; however it is ridiculous to argue that the posing of
one arguably inappropriate question to a parolee during a parole board release
hearing should result in the release of the parolee as counsel for Petitioner
suggests. None of the Board members suggested that the asking of the question
or the Petitioner's frankly understandable response to it played any part
whatsoever in the Board's ultimate decision to deny Petitioner's request for
parole. Instead, the testimony of Attorney Duffett, a member of the Parole Board
for several years who sat in on at least one prior hearing of Petitioner, the
undersigned finds instructive. Attorney Duffett testified that the Board was
"very familiar with Petitioner" and that "many factors go into the (parole)
process that can last for years ... one is acceptance of responsibility ... (F)or many
years Petitioner was in deniat always minimizing or even denying
responsibility ... (I)n 2011 Petitioner for the first time seemed to take some
responsibility."
16. Attorney Duffe tt went on to inform the Court that the underlying
murder case involved "unusual facts ... the killing of an innocent stranger.. ." .
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Moreover, Petitioner's plan that involved his moving out of state was "usually a
non-starter" in similar cases and that it would be "very unusual to release
someone who has spend 25 years in prison directly into a homeless shelter" or
permit them to move out of the State of Maine. The Board believed that "much
community structure was needed plus plenty of opportunity for Probation and
Parole to supervise the Petitioner intensely ... " something that was lacking in
Petitioner's plans for after his release.
17. All of the above coupled with the "lock in the sock" incident that
occurred mere months before the hearing and testified to at the hearing
understandably gave the Board pause, with the rational concern that any
progress the Petitioner may have made had been lost. Indeed, Attorney Duffett
testified at this hearing that "the incident in January (201 4) caused us great
concern ... "
18. What the Board found to be the inadequacy of Petitioner's proposed
release plan, the significant negative victim family and community sentiment,
the recent assaultive behavior dn the part of Petitioner, and the seriousness of
Petitioner's offense certainly provided the Board with more than sufficient
grounds to deny Petitioner's request for parole, and was not "arbitrary and
capricious" as Petitioner contends. The undersigned finds no violation of
Petitioner's substantive due process rights.
Alleged Equal Protection Violation:
19. To state an Equal Protection claim, Petitioner must allege that he was
intentionally treated differently from others similarly situated and that there was
no rational basis for the difference in treatment. See Village of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000).
20. The Court finds that Petitioner has not shown that he was
intentionally h·eated differently from other similarly situated parole applicants.
The decision whether to parole someone or not is discretionary and is highly fact
specific; as one court has observed "(I)ndeed, it i difficult to believe that any two
prisoners could ever be considered 'similarly situated' for the purpose of judicial
review on equal protection grounds of broadly discretionary decisions because
such decisions may legitimately be informed by a broad variety of an
individual's characteristics." Rowe v. Cuyler, 534 F. Supp. 297, 301 (E.D. Pa. 1982).
21. In this case the Petitioner was treated equally to other prisoners
seeking parole in that he was given a hearing pursuant to state law where his
individual circumstances were considered in determining whether he was
suitable for parole or not. The fact that some prisoners were granted parole and
Petitioner was not, for the reasons stated above, does not prove a violation of
Petitioner's equal protection rights.
22. The undersigned has reviewed in some detail the voluminous
exhibits submitted by both sides. The Petitioner has been incarcerated for 28
years for a crime he committed when he was 23 years old. Petitioner was not
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arrested for the murder committed in 1973 until 15 years had passed, during
which time Petitioner committed multiple serious assaults against other women.
While serving his sentence for murder Petitioner has made some positive strides
all of which are more fully set forth in the exhibits admitted during this hearing;
however, it is impossible to overstate the grisly nature of the underlying offense•,
or for the undersigned to take the Parole Board to task for denying Petitioner
parole. There was more than sufficient evidence to support the Board's decision,
and the undersigned does not find any constitutional infirmities that would
justify disturbing the Board's decision.
23. Accordingly, for the reasons stated above the Petition for Post-
Conviction Review is denied.
Date: July 7, 2016
BY~___,U.;llL.~~~~~~:::::::...~~
Ro ert E. Mullen, Justice
Maine Superior Court
During his parole hearing in 2006 Petitioner testified he beat the decedent to death with a
hammer after he had run his vehicle into hers, the decedent had asked for insurance information
in connection with the automobile collision, and Petitioner decided to stop the decedent from
reporting him and the accident because he did not want to go to jail. The l.aw Court in affirming
Petitioner's conviction for murder quoted trial testimony that Petitioner had told a former wife
that "he had beaten a girl with a hammer and used her shirt to wipe the steering wheel. He told
her he had beaten her unconscious and, when she started coming to, beat her again until her eye
popped out ... " State v. Boucher, 652 A2d 76, 80 (Me, 1994).
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