The opinion
STATE OF MAINE UNIFIED CRIMINAL DOCKET
CUMBERLAND, ss. No. CR-15-5036
TIMOTHY WILCOX,
Petitioner,
v. ORDER
STATE OF MAINE,
Respondent
Before the court 1s an unusual second petition filed by Timothy Wilcox for post-
conviction review.
On March 27, 1996 a jury found Wilcox guilty of two counts of kidnapping, eight counts
of gross sexual assault, two counts of robbery, and one count of unlawful sexual contact. State v.
Wilcox, CR-95-881. Wilcox was sentenced in October 1996 to consecutive sentences totaling 49
years (Calkins, J.). Thereafter Wilcox filed a petition for post conviction review alleging
ineffectiveness of counsel, which was denied after a hearing on June 30, 2004. Wilcox v. State,
CR-97-590 (Crowley, J.).
This second petition was filed in August 2015, triggered by a May 2015 letter from the
Department of Justice stating that a witness from the FBI Laboratory had presented hair
comparison testimony "containing erroneous statements" at the trial.
An amended petition was filed on May 2, 2016, asserting the questioned hair comparison
testimony as Ground One and also asserting additional grounds relating to the failure of trial
counsel to seek a severance and the alleged ineffectiveness of Wilcox's original post-conviction
counsel. The State did not challenge the timeliness of petitioner's claim with respect to the hair
comparison testimony (Ground One of the amended petition), presumably because it
acknowledged that the factual predicate of that claim could not have been discovered through
due diligence prior to the May 2015 Department of Justice letter. 15 M.R.S. § 2128-B(l)(C). 1
However, it challenged Grounds Two and Three because the claims asserted in those grounds
were untimely and because a second post-conviction petition cannot be brought based on alleged
ineffectiveness of petitioner's first post-conviction counsel.
The court dismissed Grounds Two and Three of the amended petition by order dated
August 24, 2016, and the case proceeded to a hearing on Ground One of the amended petition on
February 10, 2017. Thereafter both counsel for Wilcox and counsel for the State filed post-
hearing memoranda.
Post-Conviction Review
In an ordinary post-conviction review the petitioner has the burden of showing both
ineffectiveness and prejudice by a preponderance of the evidence. The parties to this case appear
to agree that, due to the unusual circumstances of this case, the sole issue is whether Wilcox has
met his burden of showing prejudice - whether he has shown a reasonable probability that,
absent the testimony of FBI Agent Joseph Dizinso that has now been called into question, the
result of the proceeding would have been different. See Theriault v. State, 2015 ME 13 7 ,i,i 14,
19, 125 A.3d 1163; Manley v. State, 2015 ME 117 ,i,i 12, 18, 123 A.3d 219 (cases applying and
quoting from Strickland v. Washington, 466 U.S. 668, 687, 694 (1984)).
1 Under the circumstances, where certain aspects of the testimony presented by an FBI witness have been
withdrawn by the U.S. Department of Justice, the State has also quite properly not advanced any
argument that it is too late to present newly discovered evidence under the two-year deadline in
M.R.U.C.D . 33.
2
The Law Court recently clarified in Theriault that in requiring a showing of a "reasonable
probability" that the result of the proceeding would have been different, Strickland did not
necessarily require a showing that it is likely that the outcome of the case would have been
different. 2015 ME 137 ,r,r 19-20. The defendant must show that there is a sufficient probability
of a different result "to undermine confidence in the outcome of the proceeding." Strickland, 466
U.S. at 694; Theriault, 2015 ME 137 if 19.
Overview of the Evidence at Trial
The convictions of Wilcox arose from charges relating to three different individuals
based on similar events that occurred on January 26, 1995, March 17, 1995, and March 21, 1995.
With respect to the events of January 26, 1995, the State offered evidence that Wilcox
offered a woman named Cynthia Levesque a ride home around 9:00 pm in the evening but drove
her to a remote location where he forced her at gunpoint to perform oral sex on him. According
to Levesque ' s testimony, Wilcox then forced her to partially undress and inserted his penis in her
vagina but was unable to maintain an erection. He then told her to perform another oral sex act,
but she managed to open the car door and fall out. Wilcox grabbed her pant leg and dragged her
for a short distance before the pants pulled off. He then drove off, leaving her by the side of the
road wearing nothing but a sock and a bra.
With respect to the events of March 17, 1995, the State offered evidence that Wilcox
offered a ride to a woman named Judy Stain around 12:30 am, that he did not drop her at her
home or let her out of the car as she requested but took her to a deserted parking lot below the
Eastern Prom and forced her to perform oral sex on him at gunpoint. He then ripped her clothes
off, raped her vaginally, and inserted his gun inside her vagina. Finally, he pushed her out of the
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car and drove off, taking some of her clothes and possessions and leaving her wearing only
sneakers and socks.
Finally, with respect to the events of March 21, 1995, the State offered evidence that
Wilcox offered a woman named January Fitzsimmons a ride at about 11 :30 pm and then asked
her if she wanted to smoke marijuana. When she said yes, he drove her to a remote location but
after they smoked, he produced a gun and forced her to perform oral sex on him. He then forced
her to take off her pants and penetrated her both anally and vaginally but was having trouble
maintaining an erection. He then compelled her to perform oral sex on him again and to
masturbate, subsequently demanding her backpack, taking some of her clothes, and telling her to
get out of the car.
At his jury trial in March 1996 Wilcox was convicted of kidnapping and 2 counts of gross
sexual assault with respect to the January 26, 1995 events involving Cynthia Levesque. He
received sentences of 16 years concurrent on all three counts as to those offenses.
Wilcox was also convicted of kidnapping, three counts of gross sexual assault, and one
count of robbery with respect to the events of March 17, 1995 involving Judy Stain. He received
sentences of 17 years on those five counts, concurrent with each other but consecutive to the 16
year sentence on the counts involving Cynthia Levesque.
Finally, Wilcox was convicted of three counts of gross sexual assault and one count of
robbery with respect to the events of March 21, 1995 involving January Fitzsimmons. He
received sentences of 16 years on those four counts, concurrent with each other but consecutive
to the 17 year sentence on the counts involving Judy Stain.2
2 Wilcox was also convicted of an additional charge of unlawful sexual contact involving January
Fitzsimmons and received a concurrent five-year sentence on that charge.
4
Identity was the major issue at the trial - whether there was proof beyond a reasonable
doubt that Timothy Wilcox was the person who had offered rides to Crystal Levesque, Judy
Stain, and January Fitzsimmons and had then subjected them to sexual assaults at gunpoint. That
evidence included the following:
• Cynthia Levesque was shown a photo array and said that two of the photos looked like
her assailant. One of those photos (photo # 2) was of Wilcox. Without prompting, she also
testified at trial that those two photographs "kind of looked like the guy sitting in the courtroom
right now." Tr. I at 49; Tr. II at 168-69.
• Both Judy Stain and January Fitzsimmons were shown the photo array and identified
Wilcox's photo as the photo of their assailant. In the courtroom both also identified Wilcox as
the assailant. Tr. I at 134, 136; Tr. II at 28, 32, 169-70.
• All three women testified that their assailant had a brace on his right leg. Tr. I at 38,
122; Tr. II at 169-70.
• All three women recalled that the assailant's automobile had hand controls on the
steering wheel for a person with disabilities. Tr. I at 66, 146; Tr. II at 40.
• All three women were picked up after dark and displayed varying degrees of
uncertainty as to the color of the assailant's car. Stain originally told the police that the car was
green with a tan interior. Fitzsimmons originally stated that that the car had handicapped plates
and was white with a maroon interior. Levesque testified that the assailant's car was a brown
sedan with handicapped plates. Tr. I at 32, 120; Tr. II at 10, 48. All three women, however,
positively identified Wilcox's car after he had been arrested, and Fitzsimmons testified that she
cried when she saw the car in the police garage because she remembered what had happened in
it. Tr. I at 48, 135; Tr. II at 49.
• All three women testified, with various degrees of certainty, that the pellet gun
recovered from Wilcox's residence resembled the gun that their assailant had held to their heads.
Tr. I at 46, 135: Tr. II at 31.
• A purple and green jacket that Stain had been wearing when she was picked up by her
assailant and that remained in the assailant's vehicle after the sexual assault had been given by
Wilcox to his sister and was recovered by the police from an in-law who had received the jacket
from Wilcox's sister. Tr. I at 132; Tr. II at 210, 214-15. Wilcox had told his sister that someone
left the coat in his car. Tr. II at 210-11. ·
• Keychains that were taken from Judy Stain by her assailant on the night she was
sexually assaulted were found in the glove compartment of Wilcox's vehicle. Tr. I at 132; Tr. II
at 122-23.
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• When he was arrested, Wilcox was wearing a Chicago Bulls jacket that had been taken
from Fitzsimmons by her assailant on the night Fitzsimmons was sexually assaulted. Tr. II at 23,
29-30, 90, 145.
• A backpack that the assailant had taken from Fitzsimmons on the night she was sexually
assaulted was recovered by the police from Wilcox's brother, who said he had bought it from
Wilcox. Tr. II at 22, 29-30, 117, 200-03.
• A database analyst from the Department of Motor Vehicles testified that a search in the
database for brown automobiles within the range of models and years described by the three
women with handicap controls and male operators between the ages of 15 and 40 resulted in one
vehicle - the vehicle belonging to Wilcox. Tr. II at 77-79.
Evidence that Wilcox was the assailant also included the questioned testimony from FBI
Agent Joseph Dizinso from the FBI Crime Lab with respect to certain hair comparisons.
Dizinso Testimony
Dizinso testified that he had been able to compare what he believed to be foreign hairs
found in the rape kits of Cynthia Levesque and January Fitzsimmons with known pubic hair
samples from Timothy Wilcox. He did not find any foreign hairs in the rape kit of Judy Stain. As
to both the Levesque and Fitzsimmons rape kits, Dizinso testified that the foreign hairs had the
same microscopic characteristics as the known Wilcox sample and that the foreign hairs were
consistent with having come from Wilcox. Tr. Vol. III at 32, 35.
Dizinso also stated several times, both on direct and cross examination, that hair
comparisons, as opposed to evidence such as fingerprints, are not a basis for absolute personal
identification. Id. at 32, 40, 42.
Dizinso went on to testify, however, that it was rare that "we see hairs from two different
individuals that we can't distinguish between." Id. at 32. Moreover, he testified that in thousands
of comparisons, he had only been unable to distinguish between hairs from different sources ·
6
"one time. It's so rare that when it happens in the unit these hairs are shown to other examiners
in the unit, and it very, very rarely happens." Id. at 42.
The May 2015 Department of Justice letter refers to three categories of potential errors in
hair comparison testimony given by FBI examiners prior to December 1999. The letter attaches
an evaluation form identifying specific errors in Dizinso's testimony. These were his statement
that the hairs found in the Levesque and Fitzsimmons rape kits were consistent with having come
from Wilcox and his testimony that it was very rare that hair from different individuals could not
be distinguished. According to the DOJ letter, this testimony fell within the category of error it
identified as "Error 2," which involves situations where
the examiner assigned to the positive association a statistical
weight or probability or provided a likelihood that the questioned
hair originated from a particular source, or an opinion as to the
likelihood or rareness of the positive association that could lead the
jury to believe that valid statistical weight can be assigned to a
microscopic hair association - this type of testimony exceeded the
limits of the science ...
Considered in isolation, it might be possible to dispute the extent to which Dizinso's testimony
that the foreign hairs were "consistent with" those of Wilcox was erroneous. 3 However, when
coupled with his scientifically invalid testimony as to the extreme rarity of situations where hairs
from different individuals cannot be distinguished, the court concludes that the errors in
Dizinso' s testimony cannot be minimized. 4 His acknowledgement that hair comparison was not a
3 Petitioner's expert witness, who has successfully completed all requirements for a PhD in forensic
science from the University of Dundee in Scotland, testified that it would have been more appropriate for
Dizinso to testify that the hair could have come from Wilcox "or from someone with the same
characteristics." However, the court does not discern any material difference between that form of
testimony and testimony that the hair was consistent with that of Wilcox except that the latter sounds
semantically more favorable.
4 Indeed, although not identified as such in the Department of Justice letter, Dizinso's testimony as to the
rarity of instances in which FBI examiners were unable to distinguish hair samples from different
individuals also appears to fall within the third category of potential errors listed in the DOJ letter (error
7
basis for absolute personal identification was largely negated by his testimony as to the extreme
rarity of instances in which hair from different individuals could not be distinguished.
Since 1999 hair comparisons have been made with mitochondrial DNA, but in this case
counsel have stipulated that the hairs in question here no longer can be tested because the
biological evidence in this case was destroyed sometime before the DOJ letter was sent.
According to the transcript and the docket sheet, the hair samples were not entered into evidence
at the trial. 5
No evidence was offered to suggest that the prosecutor was aware of the unreliability of
Dizinso's hair comparison testimony at the time of trial or at any time up until the May 2015
DOJ letter.
Reasonable Probability of Different Outcome
The DOJ letter and on the testimony of petitioner's. expert witness, Alicia Wilcox (no
relation), establish that the testimony of Dizinso was invalid. The remaining question is whether
that testimony tainted the proceeding to the point where there is a sufficient probability of a
different result to undermine confidence in the outcome of the proceeding. Strickland, 466 U.S.
at 694; Theriault, 2015 ME 137 ,r 19. Wilcox has the burden of proof on that issue.
At the outset, the court concludes that there is more than enough other evidence
identifying Wilcox as the assailant of Judy Stain and January Fitzsimmons so that there is no
3): "the examiner cites the number of cases or hair analyses worked in the laboratory and the number of
samples from different individuals that could not be distinguished from one another as a predictive value
to bolster the conclusion that the hair belongs to a specific individual."
5 Since the hearing, the court has been advised that the trial exhibits are also no longer available,
apparently because the Clerk's Office released them to the Portland Police Department sometime after the
trial or the first post-conviction proceeding. Upon inquiry, the clerk's office has been advised that the
Portland Police Department has not retained those items.
8
probability of a different result with respect to Wilcox's convictions relating to the sexual
assaults on those two women. 6 Both Stain and Fitzsimmons recognized Wilcox in the photo
array, and both identified him in court. Perhaps most tellingly, the property of both Stain and
Fitzsimmons - property ~ept by their assailant after he had finished sexually assaulting them and
thrown them out of his vehicle - were found in Wilcox's possession (Stain's keychain,
Fitzsimmons's Chicago Bulls jacket) or in the possession of Wilcox's relatives or in-laws
(Stain's purple and green jacket, Fitzsimmons's backpack).
In fact, in his post-hearing submission counsel for Wilcox implicitly concedes that his
convictions for the offenses involving Stain and Fitzsimmons are not vulnerable by focusing
almost entirely on Wilcox's conviction for the offenses involving Cynthia Levesque. 7
The evidence as to Levesque was not as strong. Shown the photo array, she excluded four
individuals and identified a photo of Wilcox and a photo of another individual as the possible
assailants. Although it occurred without prompting, Levesque's in court identification was
phrased in the following terms - that the assailant "kind of looked like the guy sitting in the
courtroom right now." This was considerably less positive than the in-court identifications made
by Stain and Fitzsimmons. Levesque did, however, appear to be more positive when she went on
to state, "He has a mustache now, he didn't have one then, and he had a beard then." Tr. I at 50.
6 As noted above, Wilcox was convicted of one count of kidnapping, one count of robbery, and three
counts of gross sexual assault on Judy Stain. He was convicted of one count of robbery, one count of
unlawful sexual contact, and three counts of gross sexual assault on January Fitzsimmons.
7 Petitioner's post-hearing memorandum states that the jury was given a "fairly strong story about the
rapes of Stain and Fitzsimmons" but "had far less evidence with respect to Cynthia Levesque."
Petitioner's Written Argument dated February 27, 2017 at 4. Subsequently petitioner's memorandum
argues that "Timothy Wilcox was convicted of the attack on Cynthia Levesque because of [Dizinso's
testimony]," and the memorandum concludes with the argument that at a new trial, a different jury would
likely reach a different result based on the evidence in the case for Cynthia Levesque, minus Dizinso's
testimony." Id. at 5 (emphasis added).
9
In addition, the only physical evidence tying Wilcox to the sexual assault of Levesque is
the now-discredited hair comparison by Dizinso. In opening and closing arguments, the
prosecutor never argued that the hair comparison evidence was the lynchpin of her case. Instead,
she always listed that evidence as part of a lengthy catalogue of evidence pointfug to Wilcox as
the person who sexually assaulted the three victims. Tr. I at 24-25; Tr. III at 64-65, 93. However,
she did specifically argue that the hair comparison was a corroboration of the attack on
Levesque. Tr. III at 70.
If the case involving the kidnapping and sexual assault of Cynthia Levesque were
considered separately, the court would agree without much question that Wilcox would meet his
burden of showing that, without Dizinso's testimony, there would be a reasonable probability of
a different result. However, the sexual assault on Levesque was tried along with the sexual
assaults on Stain and Fitzsimmons, and the evidence offered by the State established a similar
modus operandi leading to a strong inference that all the assaults were committed by the same
person.
Most strikingly, during the same two-month period, all three victims were walking at
night along one of the two main parallel streets one or two blocks apart - Congress Street and
Cumberland Avenue - that lead from the West End to Munjoy Hill on the Portland peninsula. 8
All three were offered a ride by a person in a car with handicapped plates and handicapped
8Levesque was walking back from Munjoy Hill along Congress Street headed to Sherman Street. Tr. I at
31-33. Stain was walking along Cumberland Avenue in the direction of Munjoy Hill. Tr. I at 118-20.
Fitzsimmons was at the intersection where Cumberland Avenue, Deering Avenue, and Congress Street
come together. Tr. II at 9.
10
controls on the steering wheel. 9 All three saw that the driver had a brace on his right leg. All
three were driven to a remote location and subjected to multiple sexual assaults.
Specifically, all three women had a gun held to their heads and were first compelled to
perform oral sex on their assailant. Levesque and Fitzsimmons were told, in the assailant's
words, "to suck his dick." Tr. I 36; Tr. II 15. Stain testified that he held the gun to her head and
"asked me to blow him." Tr. I 125. All three were then forcibly undressed so that the assailant
could insert, or attempt to insert, his penis in their vaginas (with Fitzsimmons also being
subjected to anal penetration and Stain being subjected to vaginal penetration by the assailant's
gun). Two of the women, Levesque and Fitzsimmons, testified that the assailant had difficulty
maintaining an erection. When that occurred, the assailant told both Levesque and Fitzsimmons
to perform oral sex on him a second time. Although Levesque managed to fall out of the car at
that point, Fitzsimmons was again compelled to perform oral sex.
All three victims were eventually left by the side of the road with little or no clothing.
Finally, when he was arrested four nights after the sexual assault on January Fitzsimmons,
Wilcox was again cruising the same neighborhood in his vehicle in the late evening. 10
The highly similar nature of the manner in which Levesque, Stain, and Fitzsimmons
encountered their assailant while walking in the same area of the City, the highly similar way
they were _lured into his vehicle and then taken to remote locations, the highly similar nature of
the brutal sexual assaults themselves, and the evidence that all three attacks were perpetrated
within a two-month period by a man with handicapped controls in his car and wearing a leg
9 Stain testified that the driver looked familiar but after she got in, she realized she did not recognize him
and began asking to be let out. Tr. I at 121. Fitzsimmons testified that she saw the handicapped plates and
thought the driver would not present a threat. Tr. II at 10.
10 Wilcox was arrested at the comer of Mellen Street and Deering Avenue, Tr. II 88, which is halfway
between Cumberland Avenue and Congress Street and approximately a block from where January
Fitzsimmons had been picked up by her assailant four nights earlier.
11
brace demonstrated that the sexual assaults were "connected in time, purpose, and modus
operandi" and were properly joined. State v. Pierce, 2001 ME 14 ,r 16, 770 A.2d 630, quoting
State v. Bradley, 414 A.2d 1236, 1238 (Me. 1980). More importantly, given the similarities,
these were "signature" crimes which strongly pointed to the conclusion that they were all
committed by the same person. See State v. Joubert, 603 A.2d 861, 866 (Me. 1992). Wilcox's
characteristics (including his leg brace and the handicapped controls on his car) and his
possession of clothing and other items taken from two of the women who were sexually
assaulted established that Wilcox was the assailant.
Because the "signature-like similarity" of the sexual assaults in this case, see State v.
Connors, 679 A.2d 1072, 1074 (Me. 1996), is powerful evidence that Wilcox was the assailant in
all three cases, the court concludes that Wilcox has not met his burden of proving by a
preponderance of the evidence that, absent Dizinso's testimony, there is a sufficient probability
of a different result to undermine confidence in the verdicts returned on the kidnapping and gross
sexual assault charges involving Cynthia Levesque.
In this connection, although the court accepts the testimony of Plaintiffs expert witness
with respect to the invalidity of Dizinso's hair comparison testimony based on the current state
of scientific knowledge, it does not accept her testimony as to the weight placed by jurors on
scientific evidence. Specifically, the court does not accept that generalizations as to the amount
of weight given to scientific evidence can be made based on post-trial interviews with a total of
22 jurors from 11 trials involving a range of scientific evidence - from DNA to firearms. The
amount of weight given by jurors will depend both on the nature of the scientific evidence
involved, the strength of the other evidence in the case, and how that evidence fits (or does not
fit) together. In this case, the hair comparison evidence was part of a catalogue of evidence
12
identifying Wilcox as the person who sexually assaulted Cynthia Levesque, but the remaining
evidence, especially the signature-like nature of the three assaults, is sufficiently compelling that
Wilcox has not met his burden of proving that he should be granted post-conviction relief.
The petition for post-conviction review is denied.
Dated: April '1 , 2017
Thomas D. Warren
Justice, Superior Court
13
STATE OF MAINE UNIFIED CRIMINAL DOCKET
CUMBERLAND, ss. No. CR-15-5036
TIMOTHY WILCOX,
Petitioner,
V.
STATE OF MAINE
ORDER
Cumberland, ss. Clerk's Office
STATE OF MAINE, AUG Z 4 2016
Respondent RECEIVED
Before the comt is the State's motion to dismiss Grounds Two and Three of the Amended
Petition filed by Timothy Wilcox in the above-captioned post-conviction case.
This case is unique because the pending petition was filed 19 years after Wilcox was
convicted.
On March 27, 1996 a jury found Wilcox guilty of two counts of kidnapping, eight counts
of gross sexual assault, two counts of robbery, and one count of unlawful sexual contact State v.
Wilcox, CR-95-818. Wilcox was sentenced in October 1996 to consecutive sentences totaling 49
years (Calkins, J.). Thereafter Wilcox filed a petition for post conviction review alleging
ineffectiveness of counsel, which was denied after a hearing on June 30, 2004. Wilcox v. State,
CR-97-590 (Crowley, J.).
This second petition was filed in August 2015, triggered by a May 2015 letter from the
Department of Justice stating that a witness from the FBI Laboratory had presented what the
letter described as hair comparison testimony "containing erroneous statements."
Wilcox thereafter filed the post-conviction petition that is now before the court. Counsel
was appointed, and after several extensions, an amended petition was filed on May 2, 2016.
Ground One of the amended petition is based on the now-questioned hair comparison
testimony. The amended petition also asserts two additional grounds. Ground Two of the
amended petition alleges that Wilcox's original trial counsel was ineffective in not seeking a
severance of the charges, which involved three different victims. Ground Three of the amended
petition alleges that Wilcox's counsel in his first post-conviction proceeding was ineffective in
not asserting a claim based on trial counsel's failure to seek a severance.
In its response to the petition, the State has outlined its defense to Ground One and has
moved to dismiss Grounds Two and Three. Specifically, as to Ground Two, the State argues that
the failure to seek a severance was an issue that could have been raised in the first post
conviction petition and that petitioner's claim as to the failure to seek a severance is untimely. As
to Ground Three, the State argues that post-conviction review is not available to challenge the I-
effectiveness of counsel in a prior post-conviction review proceeding.
I
In response, counsel for petitioner addressed the State's arguments on Ground One but
did not address the State's arguments with respect to Grounds Two and Three. 1 See Petitioner's
Reply to State's Answer to Amended Petition dated July 20, 2016.
The court agrees that Grounds Two and Three are subject to dismissal. First, as to
Ground Two, any argument that trial counsel was ineffective in not seeking severance should
have been filed within one year. 15 M.R.S. § 2128-B(l)(A). The State is not challenging the
timeliness of petitioner's claim with respect the hair comparison testimony (Ground One),
presumably because it acknowledges that the factual predicate of that claim could not have been
discovered through due diligence prior to the Department of Justice letter. 15 M.R.S. § 2128
B(l )(C). In contrast, the factual predicate for any claim of alleged ineffectiveness with respect to
1 Counsel for petitioner asked
for time to address the State's response and was granted an extension to
address the motion to dismiss Grounds Two and Three. See handwritten endorsement dated June 20,
2016.
2
severance (Ground Two) would have been immediately apparent. The court cannot see any
reason why such a claim claim could not have been asserted in a timely fashion. Specifically,
that claim could have been asserted in Wilcox's first post-conviction petition. It was not, and in
any event it cam1ot be raised 19 years later.
As to Ground Three, under longstanding Law Court precedent, Maine's post conviction
review statute does not authorize a second post-conviction petition seeking to challenge the
effectiveness of counsel who represented the defendant on a prior petition for post-conviction
review. j\tfcEachern v. State, 456 A.2d 886, 889-90 (Me. 1983).
Accordingly, Grounds Two and Three of the amended petition are dismissed.
In the petition, the State's response, and petitioner's reply to the State's response,
petitioner and the State have both presented arguments with respect to the merits of Ground One.
However, the court is uncertain whether there is agreement that Ground One can be decided on
the basis of the existing record and the trial tmnscript or whether further proceedings are
necessary. The Clerk's office shall schedule a conference to address what further proceedings
counsel believes are necessaiy to resolve Ground One.
Dated: August '2.c.f, 2016
Thomas D. Warren
Justice, Superior Court
3