REPORT AND RECOMMENDATION
ANDREA K. JOHNSTONE, Magistrate Judge.
After a jury trial in the Hillsborough County Superior Court, Abu Kargbo was convicted on one count of aggravated felonious sexual assault, in violation of N.H. Rev. Stat. Ann. ("RSA") § 632-A:1, I(b) (2007). He is currently serving a sentence in the New Hampshire State Prison. Appearing pro se, Kargbo petitions for a writ of habeas corpus. See 28 U.S.C. § 2254. Before this magistrate judge for a report and recommendation is respondent's motion for summary judgment (Doc. No. 67). Petitioner has not filed a formal objection to respondent's motion for summary judgment, but he has filed several other pleadings, including three motions seeking his release (Doc. Nos. 76, 77, 84). For the reasons that follow, respondent's motion for summary judgment (Doc. No. 67) should be granted, in part, and petitioner's motions (Doc. Nos. 76, 77, 84) should be denied.
Background
In its order affirming Kargbo's conviction, the New Hampshire Supreme Court ("NHSC") described the evidence adduced at trial. Evidence showed that on August 7, 2009, the victim went to a restaurant and then to the Amber Room, a nightclub in Nashua. Over the course of the evening, she drank three beers and two mixed drinks. Subsequently, she remembered dancing at the Amber Room at 12:30 a.m., but the next thing she remembered was waking up in the hospital.
As for Kargbo's connection with the victim, evidence showed that at about 3:00 a.m., Officer Andrew Roy of the Nashua Police Department ("NPD") saw Kargbo carrying the victim through a parking lot. When Officer Roy encountered Kargbo and the victim, the victim's pants were unbuttoned and only partially zipped.
Officer Roy had the victim transported to Southern New Hampshire Medical Center. When she arrived there, she was nearly unconscious. Emergency room personnel found dirt and plant matter in the victim's genital area, and expert testimony established that semen from her vaginal samples matched Kargbo's DNA.
On August 8, 2009, i.e., the morning after Officer Roy's interaction with Kargbo and the victim, Kargbo was interviewed by Detective Keith Inzenga of the NPD. At the start of the interview, Det. Inzenga told Kargbo that he was "not under arrest or anything like that," Admin. App'x at 79 (Doc. No. 67), and Kargbo confirmed that he had "voluntarily responded [to the NPD] on [his] own free will," id. According to the transcript of the interview, as reported on an NPD Voluntary Statement Form, the interview started at 7:05 a.m. and finished at 9:02 a.m.1 On several occasions, Det. Inzenga left Kargbo by himself in the interview room, and at one point, he told Kargbo that after the interview was over, he would drive him to wherever he was staying. During the interview, Kargbo told Det. Inzenga that he had engaged in sexual intercourse with the victim.
On March 11, 2010, Justice Ryan of the Nashua District Court signed a warrant for Kargbo's arrest. Later that month, Kargbo was arrested in Florida. See Sentencing Tr. (Oct. 22, 2012).
Based upon the evidence presented at trial, Kargbo was found guilty of the variant of aggravated felonious sexual assault that makes it unlawful to "engage[] in sexual penetration with another person . . . [w]hen the victim is physically helpless to resist."
After he was convicted, Kargbo filed a notice of mandatory appeal in which he listed four issues: (1) Did the trial court err in permitting State's witness Pamela Keefe, a SANE nurse, to testify at trial?; (2) Did the trial court err in finding Mr. Kargbo competent to stand trial?; (3) Did the trial court err in finding Mr. Kargbo competent — post-trial — for sentencing?; and (4) Did the trial court err in denying the defendant's motion to dismiss for insufficient evidence?
After Kargbo filed his notice of appeal, through counsel, but before he filed his brief in the NHSC, he filed two pro se motions in the trial court. Judge Nicolosi treated those motions as a petition for a writ of habeas corpus, construed the petition as asserting a claim of ineffective assistance of counsel, and identified the following purported errors by trial counsel: (1) failing to file a motion to suppress the statement that Kargbo gave to Det. Inzenga; (2) failing to show Kargbo the entire video recording of his interview with Det. Inzenga prior to trial; (3) failing to cross-examine Det. Inzenga; (4) failing to move for a directed verdict; (5) failing to object to the jury instructions; and (6) instructing Kargbo not to testify.2 In addition, according to Judge Nicolosi, during the hearing on his motion, Kargbo
raised two additional arguments that, 1. the jury selection resulted in unfit jurors being among the twelve who rendered the verdict; and 2. the testimony of the SANE nurse [i.e., Pamela Keefe] was improperly admitted because she was unqualified.
Admin. App'x at 34 (Doc. No. 68). In an order dated November 27, 2013, Judge Nicolosi denied Kargbo's motion in large part, but deferred ruling on the sixth issue until after she had conducted a hearing.
After Judge Nicolosi issued her November 27 order, Kargbo filed a pro se motion to dismiss the case against him, raising arguments about the admission of testimony from nurse Keefe, racial bias, his competence to stand trial, sufficiency of the evidence, and the racial composition of his jury. With regard to the racial composition of his jury, Kargbo made no factual allegations, but cited Batson v. Kentucky for the proposition that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race," 476 U.S. 79, 89 (1986). In an order dated January 23, 2014, Judge Nicolosi denied Kargbo relief on the issue she had previously deferred ruling on and denied his new motion to dismiss, explaining that the motion "raise[d] the same issues previously addressed by the court and, to the extent it can be said that any new issues are raised, they are without foundation in the record." Admin. App'x at 57 (Doc. No. 68). There is no indication in the record before this court that Kargbo ever appealed Judge Nicolosi's orders of November 27, 2013, and
Next, Kargbo filed his appellate brief with the NHSC, again through counsel. In it, he raised a single issue: whether the State had introduced sufficient evidence to support his conviction. The NHSC affirmed Kargbo's conviction in an order dated December 9, 2014. See State v. Kargbo, No. 2012-0784 (N.H. Dec. 9, 2014).
Kargbo filed his petition for a writ of habeas corpus in this court in August 2015. In it, he asserts 12 claims. In January 2016, Kargbo was granted a stay of this proceeding so that he could go back to the state courts to pursue any claims in his petition that had not yet been adjudicated there.
About two weeks later, Kargbo filed two pleadings with the NHSC each captioned "Petitioner['s] Motion to Exhaust His State Remedies" and a third pleading captioned "Petitioner['s] Motion to Proceeding in this Honorable Court." See Addendum at 1, 5, 10 (Doc. No. 26). In one of the motions to exhaust, petitioner argued that the statement he gave to Det. Inzenga was admitted at trial in violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). In the second motion to exhaust, petitioner raised a claim that he had received ineffective assistance of counsel. And in his third motion, he appears to have elaborated on his ineffective-assistance claim and also to have claimed constitutional violations based upon the racial composition of his jury. Specifically, he referred to both his equal-protection rights under Batson and his Sixth Amendment "right to be tried by an impartial jury drawn from sources reflecting a fair cross section of the community," Berghuis v. Smith, 559 U.S. 314, 319 (2010) (citing Taylor v. Louisiana, 419 U.S. 522 (1975)). While petitioner's three motions were pending before the NHSC, he filed what appear to be three largely similar motions in the superior court.3
In an order dated June 24, 2016, the NHSC construed Kargbo's three motions as a petition for original jurisdiction, and denied it. Then, in an order dated September 8, 2016, Judge Temple of the superior court denied all three of the motions before him on grounds of res judicata, and further ruled that even if not barred by res judicata, those motions had no basis in law or fact. In January 2017, petitioner filed a notice of appeal with the NHSC, and in an order dated March 8, 2017, the NHSC declined it.
Standard
A federal court may grant habeas corpus relief "only on the ground that [a petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Procedurally, "[a]n 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 . . . the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). However, "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2).
Substantively, when a prisoner brings a claim in federal court that "was adjudicated on the merits in State court proceedings," 28 U.S.C. § 2254(d),
[f]ederal habeas relief may not be granted . . . unless it is shown that the earlier state court's decision "was contrary to" federal law then clearly established in the holdings of this Court; or that it "involved an unreasonable application of" such law; or that it "was based on an unreasonable determination of the facts" in light of the record before the state court.
Harrington v. Richter, 562 U.S. 86, 100 (2011) (citations omitted). Notwithstanding the deferential standard of review that normally applies to petitions for habeas corpus relief, if a claim "has not been adjudicated on the merits in state court," it is subject to de novo review. See Jaynes v. Mitchell, 824 F.3d 187, 192 (1st Cir.) (citation omitted), cert. denied, 137 S.Ct. 312 (2016).
Discussion
I. Respondent's Motion for Summary Judgment (Doc. No. 67)
A. Claim 1
In Claim 1, petitioner asserts that the trial judge was biased against him, in violation of his Sixth and Fourteenth Amendment rights to due process and a fair trial. However, petitioner does not identify: (1) any statement, action, or ruling by the trial judge that demonstrated bias; (2) any contemporaneous objection to any such statement, action, or ruling; or (3) any decision by a state court on any issue related to purported bias on the part of the trial judge. Accordingly, as to Claim 1, respondent's motion for summary judgment should be granted.
B. Claim 2
In Claim 2, petitioner asserts that a defective reasonabledoubt instruction deprived him of his rights to due process and a fair trial under the Sixth and Fourteenth Amendments. The court does not agree.
At the conclusion of Kargbo's trial, Judge Nicolosi gave various jury instructions, including these on reasonable doubt:
Under our constitutions, all defendants in criminal cases are presumed to be innocent unless proven guilty beyond a reasonable doubt by the State. . . . The Defendant enters this courtroom as an innocent person, and you must consider him to be an innocent person unless and until the State convinces you beyond a reasonable doubt that he is guilty of every element of the alleged offense. And also, in this case, the State must prove that the alleged victim did not consent.
If, after all of the evidence and arguments, you have a reasonable doubt as to the Defendant having committed any one or more of the elements of the offense, and again, in this case, that the alleged victim did not consent to having sexual intercourse, then you must find him not guilty. A reasonable doubt is just what the words would ordinarily imply. The use of the word reasonable means simply that the doubt must be reasonable rather than unreasonable. It must be a doubt based on reason. It is not a frivolous or fanciful doubt, nor is it one that can easily be explained away. Rather, it is such a doubt based upon reason as remains after consideration of all of the evidence that the State has offered against it.
The test you must use in this case is this. If you have a reasonable doubt as to whether the State has proven any one or more of the elements of the crime charged, and in this case, that the alleged victim did not consent to having sexual intercourse, you must find the Defendant not guilty.
Trial Tr. vol. III, 395:20-396:21.
The trial record discloses no contemporaneous objection to any of the jury instructions, including those related to reasonable doubt. Kargbo did not mention the jury instructions in his notice of appeal to the NHSC; nor did he brief any issue related to them. In the affidavit he submitted in support of his state habeas petition, Kargbo stated: "Defendant believes that the State of New Hampshire used jur[y] instructions against defendant." Admin. App'x (Doc. No. 68) 23. Judge Nicolosi treated that statement as an actual claim and addressed it this way: "The defendant failed to set out a specific complaint in his pleadings nor did he fill out the complaint during the hearing." Id. at 44. Thus, it is far from clear that petitioner has properly exhausted a constitutional claim based upon the jury instructions at his trial. But, even if the claim has not been exhausted, the court is permitted to deny it on the merits, see 28 U.S.C. § 2254(b)(2), and the district judge should do just that.
In the context of jury instructions, "the only question for [a federal court reviewing a § 2254 petition] is whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Carpio v. Wall, 269 F.Supp.3d 4, 7 (D.R.I. 2017) (citation, brackets, and quotation marks omitted). The reasonable-doubt instruction that Judge Nicolosi gave the jury did not "infect" Kargbo's trial at all, much less infect it to the point where he was denied due process. Accordingly, as to Claim 2, respondent's motion for summary judgment should be granted.
C. Claim 3
In Claim 3, petitioner asserts that he was deprived of his Sixth and Fourteenth Amendment rights to due process and a fair trial because he was denied the opportunity to be present at all critical stages of his trial. However, petitioner does not identify: (1) any critical stage of his trial that he was denied the opportunity to attend; (2) any contemporaneous objection to any purported exclusion from his trial; or (3) any decision by a state court on an issue related to his purported exclusion. Accordingly, as to Claim 3, respondent's motion for summary judgment should be granted.
D. Claim 4
In Claim 4, petitioner asserts that because he is African American and was convicted by an all-white jury, he was deprived of his Sixth and Fourteenth Amendment rights to due process, equal protection, and a fair trial before a jury made up of a representative cross-section of the community. The court does not agree.
"The Sixth Amendment secures to criminal defendants the right to be tried by an impartial jury drawn from sources reflecting a fair cross section of the community." Berghuis, 559 U.S. at 319.
[T]o establish a prima facie violation of the Sixth Amendment's fair-cross-section requirement [a criminal defendant] must show: "(1) that the group alleged to be excluded is a `distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process."
Id. at 319 (quoting Duren v. Missouri, 439 U.S. 357, 364 (1979)). Petitioner bases his claim upon allegations that he is African American and his jury was all white, but neither his petition nor any of his subsequent filings say anything about the racial makeup of the venire from which his jury was drawn nor does he identify any means by which members of his racial group were systematically excluded from the venire. Accordingly, as to Claim 4, respondent's motion for summary judgment should be granted.
E. Claim 5
In Claim 5, petitioner asserts that the State improperly excluded members of his race from the jury, in violation of his due-process, equal-protection, and fair-trial rights under the Sixth and Fourteenth Amendments. The court does not agree.
"[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race." Batson, 476 U.S. at 89. As the Batson Court went on to explain:
[A] defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury . . . raises the necessary inference of purposeful discrimination.
476 U.S. at 96 (citations omitted). As for how a defendant might establish an inference of purposeful discrimination, the Court suggested that, among other things, a defendant could rely upon "a `pattern' of strikes against black jurors included in the particular venire," id. at 97, or "the prosecutor's questions and statements during voir dire examination and in exercising his challenges," id.
Turning from the applicable law to the facts of this case, while it is not entirely clear from the transcript of jury selection, it would appear that five individuals were struck from the jury as a result of peremptory challenges by one side or the other. See Jury Selection Tr. (Nov. 28, 2011) 54:12-15. The jury selection transcript includes no information on the races of the jurors who were struck, and Kargbo's counsel raised no objections to the State's presumed use of peremptory challenges. Thus, the prosecutor was never called upon to explain the basis for his peremptory challenges. Finally, apart from making several conclusory assertions that members of his race were excluded from his jury, petitioner identifies no factors that might support an inference that the State engaged in purposeful discrimination against members of Kargbo's race when using its peremptory challenges. Accordingly, as to Claim 5, respondent's motion for summary judgment should be granted.
F. Claim 6
In Claim 6, petitioner asserts that his conviction violated his Fourteenth Amendment right to due process because actions by the trial court and the State denied him exculpatory evidence.4 Petitioner does not identify: (1) any exculpatory evidence that he was purportedly denied; or (2) any decision by the trial court that resulted in the denial of exculpatory evidence. Accordingly, as to Claim 6, respondent's motion for summary judgment should be granted.
G. Claim 7
In Claim 7, petitioner asserts that "[t]rial prosecutors failed to turn[] over []relevant pre-trial statements and testimony by . . . prosecution witnesses," Pet. at 6 (Doc. No. 3), an assertion that has been construed as a claim the State violated Kargbo's Fourteenth Amendment right to due process by failing to turn over prosecution witnesses' pretrial statements and testimony. This issue was not addressed in Kargbo's direct appeal, his collateral attack on his conviction, or any of the three pleadings that petitioner filed in the superior court and the NHSC in an attempt to exhaust his claims. Thus, it does not appear that Claim 7 has been properly exhausted. But even so, the court may deny an unexhausted claim on the merits, see 28 U.S.C. § 2254(b)(2), and the district judge should dispose of Claim 7 that way.
As for the substantive law that applies to Claim 7:
"`The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Wearry v. Cain, 136 S.Ct. 1002, 1006 (2016) (quoting Brady v. Maryland, 373 U.S. 83, 87 (1963)). To succeed on a § 2254 claim under Brady, a petitioner must show that the undisclosed evidence "is sufficient to undermine confidence in the verdict." Wearry, 136 S. Ct. at 1006.
McGrath v. Warden, N.H. State Prison, No. 14-cv-353-JD, 2016 WL 3945159, at *6 (D.N.H. July 19, 2016). Here, petitioner has not identified either the specific witnesses at issue or evidence from their statements that he was denied to his detriment. So, necessarily, he has not indicated how the purportedly suppressed evidence was material to guilt or punishment nor has he indicated how that evidence might be favorable to him. Accordingly, as to Claim 7, respondent's motion for summary judgment should be granted.
H. Claim 8
In Claim 8, petitioner asserts that he was denied his Sixth and Fourteenth Amendment right to counsel when he was not allowed to represent himself in his direct appeal. Respondent argues that Claim 8 is waived, unexhausted, and meritless. Claim 8 should be denied on the merits. This is the reason why:
The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment. In Faretta v. California, 422 U.S. 806 (1975), we decided that the defendant also "has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so." Although that statement arguably embraces the entire judicial proceeding, we also phrased the question as whether a State may "constitutionally hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense." Our conclusion in Faretta extended only to a defendant's "constitutional right to conduct his own defense." Accordingly, our specific holding was confined to the right to defend oneself at trial. We now address the different question whether the reasoning in support of that holding also applies when the defendant becomes an appellant and assumes the burden of persuading a reviewing court that the conviction should be reversed. We have concluded that it does not.
Martinez v. Court of Appeal, 528 U.S. 152, 154 (2000) (footnote and citations omitted). Accordingly, because Kargbo had no constitutional right to represent himself on appeal, respondent's motion for summary judgment should be granted as to Claim 8.
I. Claim 9
In Claim 9, petitioner asserts that his conviction violated his rights under the Fifth and Fourteenth Amendments because inculpatory statements he made to the police while subject to a custodial interrogation were admitted at trial, even though the police did give him a Miranda warning, and he did not knowingly or voluntarily waive his rights to remain silent and to have an attorney present during that interrogation. The court does not agree.
"Under the familiar rule of Miranda v. Arizona, a suspect who is subject to `custodial interrogation' must first be informed of his Fifth Amendment privilege against selfincrimination and his right to an attorney to safeguard that privilege." Rivera v. Thompson, 879 F.3d 7, 13 (1st Cir. 2018) (citations omitted). However:
Miranda's protections [only] apply once "a person has been taken into custody or otherwise deprived of his freedom in any significant way." Beckwith v. United States, 425 U.S. 341, 347 (1976). "In determining whether an individual was in custody," [a court must] assess "all of the circumstances surrounding the interrogation," with the "ultimate inquiry" being "whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Stansbury v. California, 511 U.S. 318, 322 (1994) (per curiam) (internal quotation marks and alterations omitted).
Rivera, 879 F.3d at 14 (parallel citations omitted). In a recent case that, like this one, involved an interview with a suspect at a police station, the First Circuit explained:
Swan's voluntary decision to meet at the stationhouse strongly suggests that she was not "in custody" for the purposes of Miranda. See McCown v. Callahan, 726 F.2d 1, 6 (1st Cir. 1984) (Breyer, J.) (finding interaction with law enforcement non-custodial because the "defendants had come to the station voluntarily," "were told that they were not under arrest," and "left the station undisturbed").
United States v. Swan, 842 F.3d 28, 31 (1st Cir. 2016).
Here, it is clear that Det. Inzenga did not give Kargbo Miranda warnings during the interview he conducted on August 8. But, apart from repeatedly asserting that the interview lasted eight hours when the record evidence is that it lasted only two, petitioner makes no effort to establish that his interview was a custodial interrogation that required Miranda warnings. Furthermore, there is nothing in the transcript of the interview or anywhere else in the record to suggest that the August 8 interview was a custodial interrogation for Miranda purposes. To the contrary, at the start of the interview, Kargbo confirmed that he had "voluntarily responded [to the NPD] on [his] free will," Admin. App'x (Doc. No. 68) at 78; Det. Inzenga expressly told Kargbo that he was "not under arrest or anything like that," id.; and during the interview, Det. Inzenga told Kargbo that after the interview was over, he would drive him to a friend's house. Under those circumstances, Kargbo was not in custody. See Swan, 842 F.3d at 31. Because Kargbo was not in custody during his interview on August 8, Miranda warnings were not necessary to render the statements he gave Det. Kargbo admissible at his trial. See Rivera, 879 F.3d at 13 (explaining that "[t]he remedy for a violation of Miranda's `prophylactic rules, in the ordinary case, is the exclusion of evidence impermissibly gathered as a result of the violation'") (quoting Johnston, 871 F.3d at 58). Accordingly, as to Claim 9, respondent's motion for summary judgment should be granted.
J. Claim 10
In Claim 10, petitioner asserts that "his arrest [was] illegal for want of probable cause, and an arrest warrant," Pet. (Doc. No. 3) at 7, an assertion that has been construed as a claim that Kargbo was subjected to a warrantless arrest, not based on probable cause, in violation of his Fourth and Fourteenth amendment rights. However, petitioner provides no details about the arrest upon which Claim 10 is based. In the discussion of Claim 10 in his second petition, Kargbo refers to the exclusion of evidence obtained as a result of an unlawful arrest, which suggests that Claim 10 arises from the events of August 8, 2009, and the interview that he gave to Det. Inzenga, which was not custodial. The only arrest documented in the record is Kargbo's arrest in Florida, in March 2010. That arrest took place after Judge Ryan had issued a warrant for it, and there is no indication in petitioner's pleadings or anywhere in the record that the 2010 arrest ever led to the collection of any evidence. Accordingly, as to Claim 10, respondent's motion for summary judgment should be granted.
K. Claims 11 and 12
Kargbo raises twelve claims in his petition. In his motion for summary judgment, respondent makes two arguments, but does not brief the reasons for granting summary judgment on Claims 11 and 12. First, he asserts, in a heading, that "Claims 1 through 10 and Claim 12 are waived," Resp't's Mem. of Law (Doc. No. 67-1) at 12, and then he explains, in the text that follows, that "[t]he petitioner did not raise claims 1 through 10 at trial, in his notice of appeal, or in his direct appeal," id. While the heading mentions Claim 12,5 the text does not, and neither the heading nor the text says anything about Claim 11.6
Respondent's second argument is headed: "Claims 1 through 10 and 12 are without merit." Resp't's Mem. of Law (Doc. No. 67-1) at 13. However, like his first argument, respondent's second argument says nothing about Claims 11 or 12.
In the Order issued this date, the court has directed petitioner to file a motion for summary judgment addressing Claims 11 and 12 within thirty days, or to move the court to extend or vacate that deadline, before that deadline expires. When respondent briefs the reasons for judgment as a matter of law as to Claims 11 and 12, the court will address those arguments. But for the moment, as to Claims 11 and 12, respondent's motion for summary judgment should be denied.
II. Petitioner's Motions (Doc. Nos. 76, 77, 84)
Kargbo has filed three motions seeking relief on claims in his § 2254 petition (Doc. Nos. 76, 77, 84). Document No. 76 seeks Kargbo's release, but asserts no factual basis or legal arguments upon which such relief could be premised, and should therefore be denied.
The second motion (Doc. No. 77) inquires as to the status of petitioner's request for release, and, along with Document No. 84, asserts that there is insufficient evidence to support his conviction. The NHSC in Kargbo's direct appeal concluded that the evidence was sufficient to support the jury's verdict. See Kargbo, No. 2012-0784, slip op. at 4. That decision is not contrary to pertinent Supreme Court law, see, e.g., Jackson v. Virginia, 443 U.S. 307, 332 (1979) (due process/sufficiency of evidence standard), and is reasonable in light of the evidence in the record. Accordingly, petitioner's claims regarding the sufficiency of the evidence do not warrant the relief requested in Document Nos. 77 and 84.
Kargbo further asserts in Document No. 77 that the judge and prosecutors in his case were biased and discriminated against him because of his race. Kargbo's assertion of the trial judge's alleged bias is the subject of Claim 1, as to which summary judgment should be entered for the respondent for reasons stated in this Report and Recommendation, supra. Kargbo points to no record evidence to support his assertions of racial bias as to any participant in his prosecution. Accordingly, the relief requested in Document No. 77 should be denied.
In Document No. 84, petitioner requests a pardon and provides a string of cases that involve claims of trial judge bias, jury selection claims, claims of ineffective assistance of counsel, and Miranda violation claims. This court does not have jurisdiction to pardon petitioner, for reasons stated in respondent's objection (Doc. No. 85). Furthermore, the arguments and legal citations in Document No. 84, to the extent they relate to Claim 9 (alleging a Miranda violation), Claims 4 and 5 (alleging jury selection issues), and Claim 11 (alleging ineffective assistance of counsel), are not grounded in references to any pertinent record evidence. Accordingly, the relief sought in Document No. 84 should be denied.
Conclusion
For the reasons detailed above, respondent's motion for summary judgment, Doc. No. 67, should be granted as to Claims 1-10, but denied as to Claims 11 and 12. The three motions filed by petitioner (Doc. Nos. 76, 77, 84) should be denied.
Any objection to this Report and Recommendation must be filed within 14 days of receipt of this notice. See Fed. R. Civ. P. 72(b)(2). The 14-day period may be extended upon motion. Failure to file a specific written objection to the Report and Recommendation within the specified time waives the right to appeal the district court's order. See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
