JOSEPH LAPLANTE, District Judge.
Dominic S. Ali, an inmate at the Northern New Hampshire Correctional Facility, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in which he asserts that his convictions were obtained in violation of his federal rights. Presently before the court are:
For the reasons that follow, both of Ali's motions (doc. nos. 30 and 36) are denied. The warden's motion (doc. no. 41) is denied without prejudice as to Claims 4(g) and 5, and is granted as to the remaining claims. Ali's § 2254 petition is denied with respect to all claims other than Claims 4(g) and 5. A briefing schedule is set forth in the conclusion of this order with respect to Claims 4(g) and 5.
Ali's § 2254 petition challenges his conviction and sentence on second degree assault charges stemming from a February 2008 altercation with his girlfriend, Sara Nagy. In its 2008 prosecution of Ali, the state used a 2004 conviction for violating a restraining order as the basis for enhancing the second degree assault charge to a Class A felony. The enhancement increased Ali's maximum possible sentence from seven years to fifteen years by operation of N.H. Rev. Stat. Ann. ("RSA") § 173-B:9, IV(b).
In 2004, Ali was charged with violating a domestic violence protective order, and the court appointed the New Hampshire Public Defender ("NHPD"), to represent Ali on that charge. Counsel from the public defender's office represented Ali in the 2004 case. Acting upon defense counsel's advice, Ali entered a plea of nolo contendere to the charge, and received a "timeserved" sentence. Ali has tried unsuccessfully to withdraw that nolo plea and to overturn his 2004 conviction in the state courts.
In February 2008, following a late night incident with his girlfriend, Sara Nagy, which left Nagy with bruises and a broken left collarbone, Ali was arrested and charged with misdemeanor offenses and two felony second degree assault charges, one of which was enhanced to a Class A felony, under RSA § 173-B:9, IV(b), based on Ali's 2004 conviction. The trial court in 2008 appointed the NHPD to represent Ali on the charges, and NHPD Attorneys Helen Sullivan and Aileen O'Connell represented Ali prior to and at the September 25-26, 2008, jury trial.
Prior to trial, Ali, defense counsel, and the prosecutor signed a stipulation removing the fact of the 2004 conviction from the jury's consideration, and allowing the court to make a finding on that issue.
At trial, Nagy testified that Ali had been out late on the night of the incident and had returned to the apartment she and Ali shared after she had gone to bed. She testified that two friends, Johnnie and Chrissy, were staying over in another room. Nagy testified that Ali came into the bedroom, accused her of having a man over, called her a whore, hit her multiple times, and then threw her from the bed to the floor, causing her to land on her left side and feel pain "everywhere," referring to her left side. She testified that Ali kicked her as she lay on the floor. Ali then left the room and threw Johnnie out of the apartment. Nagy further testified that Ali hit her repeatedly in the head with a soda can, then took her cellphone and told her not to move. Nagy testified that, when Ali went into another room, she escaped through a first floor child's bedroom window by first putting one of her young children out the window, then jumping to the ground and running to an apartment next door. Chrissy remained behind with Nagy's other children.
After Nagy left, Ali called the police to report that Nagy had left children unattended. The arresting officer, Officer Christopher Biron, testified that he appeared on the scene in response to Ali's call, and that the police had received a report of a possible domestic assault in the area. Officer Biron testified that, while approaching the apartment building, he noticed Nagy whispering to him from a neighboring apartment window. The officer interviewed Ali and Chrissy, and also interviewed Nagy next door. Nagy appeared distraught and in pain, according to Officer Biron's testimony, while Ali appeared calm. Officer Biron further testified that Ali said the doors worked fine, and could not explain why Nagy would have left through a window. Officer Biron arrested Ali after conferring with another responding officer, Officer Kelly McKenney, and recovered both Ali's and Nagy's cellphones from Ali.
Officer Kelly McKenney testified that Nagy appeared terrified and was shaking when Officer McKenney interviewed her in the neighboring apartment. Officer McKenney photographed Nagy's back and the apartment where the altercation took place.
An emergency medical technician ("EMT") who examined Nagy in the neighboring apartment testified that Nagy complained of pain and had an apparent left shoulder injury. The EMT and his partner immobilized Nagy's shoulder and then transported her to the hospital. Dr. Seidner, Nagy's treating emergency room physician, testified that Nagy had suffered a displaced, broken left collarbone, and that there were marks and contusions on her lower back. Photos admitted into evidence showed that Nagy had multiple bruises on her lower back and buttocks. After the close of the evidence and counsels' summation, the jury convicted Ali on two misdemeanor charges and on both second degree assault counts.
After filing a sentencing memorandum on Ali's behalf, Attorneys Sullivan and O'Connell moved to withdraw on the basis of an undisclosed conflict of interest. The Superior Court appointed a non-NHPD attorney, Attorney Anthony Introcaso, to represent Ali, and Attorney Introcaso appeared on Ali's behalf in the sentencing hearing and also filed Ali's notice of appeal, before moving to withdraw. The Superior Court sentenced Ali to concurrent one-year, stand-committed, sentences on the misdemeanors, offset by 364 days of pretrial confinement, followed by concurrent sentences of 3½ to 7 years, suspended, and 5 to 10 years, stand committed, on the two second degree assault counts.
The New Hampshire Supreme Court ("NHSC") appointed the Office of the New Hampshire Appellate Defender ("NHAD") to represent Ali in his direct appeal. NHAD Attorney Paul Borchardt filed a brief on Ali's behalf in September 2009, arguing three issues raised in the notice of appeal, including a double jeopardy issue that the trial court had rejected in a pretrial order denying Ali's motion to dismiss. In November 2009, the state filed its brief in the NHSC and conceded the double jeopardy issue.
In January 2010, while his direct appeal was pending, Ali moved for the appointment of new counsel, citing his belief that he had received ineffective assistance from his NHPD attorneys at trial. Ali also requested a stay to allow him to file a motion for a new trial in the Superior Court. The NHSC stayed Ali's direct appeal to allow him time to file a motion for a new trial in Superior Court.
In March 2010, Ali filed a pro se motion for a new trial in the Superior Court, asserting that Attorneys O'Connell and Sullivan had provided him ineffective assistance of counsel by failing to take an interlocutory appeal of the pretrial denial of his motion to dismiss based on double jeopardy. The Superior Court appointed non-NHPD Attorney Ghazi Al-Marayati to represent Ali with respect to the new trial motion. Ali asserts that on Attorney Al-Marayati's advice, Ali withdrew the motion in July 2010.
Thereafter, the NHSC lifted the stay in Ali's direct appeal, denied Ali's motion for new counsel, then vacated the Class B second degree assault conviction on double jeopardy grounds and affirmed the remaining convictions (including the Class A felony).
Ali filed a § 2254 petition in this court challenging the validity of his Class A felony conviction on multiple grounds. The court has identified the following claims in the § 2254 petition
In the context of a habeas corpus proceeding, summary judgment is appropriate when the nonmoving party fails to show a genuine issue of material fact that would require an evidentiary hearing.
Federal courts reviewing claims asserted in § 2254 petitions apply a highly deferential standard of review to state court findings and legal conclusions. Federal habeas relief is not available as to any claim adjudicated on the merits in state court, unless the state court's legal conclusions or application of legal standards to settled facts "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." 28 U.S.C. § 2254(d)(1);
If the issue is one of fact, the habeas court must "apply a presumption of correctness to the [state] court's factual findings and also examine whether there has been an unreasonable determination of the facts in light of the evidence presented in the state court proceeding."
Through Claims 1(b) and 8, Ali seeks to challenge the validity of his 2008 enhanced Class A felony conviction by collaterally challenging the validity of the 2004 conviction that resulted in the enhancement of the 2008 charge. A petition for federal habeas relief under 28 U.S.C. § 2254 does not provide Ali with a remedy for such claims.
Ali challenged the validity of the 2004 conviction in state court post-conviction proceedings, but did not succeed.
Respondent argues that certain claims in the § 2254 petition were procedurally defaulted. "A state court's invocation of a procedural rule to deny a prisoner's claims precludes federal review of the claims if, among other requisites, the state procedural rule is a nonfederal ground adequate to support the judgment and the rule is firmly established and consistently followed."
The Superior Court, in a March 2012 order, determined that Ali had procedurally defaulted Claim 1(a). That court cited pertinent authority demonstrating that its ruling was based on an independent and adequate state procedural rule. Applying the relevant standard, this court concludes that Claim 1(a) is procedurally defaulted.
The Superior Court in the March 2012 order declared that Claims 4 and 5(c) were procedurally defaulted, upon finding that the same claims had been rejected as waived in a June 2011 order on a post-conviction motion in Ali's criminal case, and that no new issues had been asserted.
The June 2011 order does not cite any authority for the waiver rule that it applied to Ali. The March 2012 order simply followed that earlier ruling as to the waiver issue, without citing any other authorities on that issue. The warden has not shown that there is an established state rule, consistently applied to bar prisoners from subsequently pursuing petitions asserting ineffective assistance of counsel claims, if they have previously filed, then withdrawn upon counsel's advice, a new trial motion asserting one ineffective assistance of counsel claim. In other words, the warden has not carried his burden of showing that the waiver rule at issue is an independent and adequate state rule of decision. This court thus concludes that Claims 4 and 5(c) are not procedurally defaulted.
Respondent further argues that Claims 1(c), 2, and 3 must be deemed procedurally defaulted. A claim may be deemed procedurally defaulted "if it was not presented to the state courts and it is clear that those courts would have held the claim procedurally barred."
Respondent's final contention on procedural default is that Claim 9 is defaulted because Ali did not file a timely motion for disqualification of NHSC Justice Conboy in the direct appeal of his conviction, as required by NHSC Rule 21A. Rule 21A requires an appellant to file a notice of disqualification along with the notice of appeal, and further provides that without a showing of good cause for untimely filing, the right to request recusal is waived.
The warden has cited no law to support his claim of procedural default. NHSC Rule 21A does not directly govern the question of whether judicial bias claims, regarding NHSC justices, asserted for the first time in post-conviction proceedings, would necessarily be barred because the petitioner did not file a timely Rule 21A motion in the NHSC. The warden has therefore failed to carry his burden of establishing that Claim 9 would have been barred, had it been asserted in the state courts.
A federal court cannot review a procedurally defaulted claim in a § 2254 petition, unless the petitioner demonstrates either "actual innocence," or "cause" and "prejudice."
Liberally construing Ali's petition, this court finds no basis upon which Ali may be deemed to have asserted cause for the procedural default of Claim 1(c). To the extent Ali seeks to argue cause by pointing in this case to trial counsel's provision of ineffective assistance of counsel, he cannot rely on that assertion of cause because he has not exhausted his state court remedies on a Sixth Amendment ineffective assistance of counsel claim based on the failure to preserve an
Ali has also failed to show prejudice, insofar as Claim 1(c) lacks merit.
Claims 4 and 6, asserting ineffective assistance of counsel, are construed liberally as asserting cause for the procedurally defaulted claims, specifically: Claim 6, as to Attorney Borchardt, is asserted as cause for the default of Claims 1(a) and 2 in the NHSC; and Claim 4, as to trial counsel, is asserted as cause for the default of Claim 3 at trial. Ali's petition thus nests together multiple layers of ineffective assistance of counsel claims, to show cause for procedural defaults of Claims 1(a), 2, and 3, and to show independent bases for granting federal habeas relief, as to Claims 4-7. The analysis of all of these claims is linked, because a petitioner who cannot show prejudice to establish a claim under
Under
The court in the prejudice analysis must consider the totality of the evidence before the jury.
Ali has asserted four types of
Ali claims that Nagy abused drugs and alcohol, frequently failed to take prescriptions, and had a mental illness, and that trial counsel's failure to introduce that evidence to impeach the victim was substandard and prejudicial. Nothing in the state court record, however, substantiates that such evidence exists.
Furthermore, the information Ali cites as to mental illness, prescription medications, and alcoholism, would not be deemed relevant for impeachment purposes, without additional information showing that Nagy abused alcohol in the relevant time period, and that her unspecified mental illness and frequent failures to take medications could have had an impact on her veracity or ability to recall facts.
Ali asserts that defense counsel's representation at trial was incompetent because he had told Attorneys Sullivan and O'Connell that his 2004 nolo contendere plea had not been knowing and voluntary, and that he had received incompetent advice in plea bargaining from his NHPD defense counsel in 2004. Ali agreed to a nolo contendere plea in that case, and received a time-served sentence, relying, he asserts, on counsel's explanation that a nolo plea meant "nothing." Ali's claim with respect to his 2008 counsel is entitled to de novo review, as there is no state court decision on the question.
The deferential § 2254 standard applies here, however, as to the validity of the 2004 conviction, as Ali did litigate that question in post-conviction proceedings in the state courts. The Goffstown District Court held an evidentiary hearing on Ali's motion to withdraw the plea on February 15, 2011. After reviewing a recording of the September 28, 2004, hearing, that court issued an order on March 3, 2011, finding that Ali's claims were not credible.
Two transcripts relevant to this court's consideration of Claim 4(g) have not been provided to the court in this matter: (1) the transcript of the September 28, 2004, plea hearing, in the 2004 case; and (2) the transcript of the February 15, 2011, evidentiary hearing on Ali's motion to withdraw the plea. Pursuant to this court's authority under Rule 5(c) of the Rules Governing Section 2254 Cases in the United States District Courts, this court directs the respondent to furnish those transcripts to this court. The court denies the warden's motion on Claim 4(g), without prejudice to refiling after respondent has filed those transcripts, as specified in the conclusion of this order.
Ali asserts that defense counsel's representation was incompetent because counsel failed to investigate the status of a state child protective services ("DCYF") case involving Nagy and her children. The record shows that defense counsel sought to elicit testimony from Nagy at trial about a DCYF case that was open in August 2008, to support the theory that Nagy had a motive to lie in February 2008 to shift responsibility to Ali for her decision to abandon her children. The trial court sustained a relevance objection, and the NHSC found no error in that ruling, noting that defense counsel had not asserted that the case was open prior to the incident, and upon finding that there was undisputed evidence that Nagy's friend remained behind in the apartment.
Assuming error on the part of defense counsel, and noting that the failure to investigate may have had an impact on the trial court's exclusion of the evidence, this court examines the issue of prejudice under
Ali has asserted that counsel was incompetent in failing to depose witnesses including the EMT and the physician pretrial. The testimony of the EMT and physician was, in general, descriptive of their observations regarding Nagy's condition. The physician's testimony on his diagnosis regarding Nagy's injuries was straightforward, and the diagnosis was not disputed. Defense counsel successfully elicited testimony from the EMT regarding his observations and the omissions from his case report that defense counsel argued in summation undermined the credibility of Nagy's testimony, as well as helpful opinion testimony from the physician at trial regarding the limitations imposed by Nagy's injuries, without eliciting any damaging testimony or opinions about causation that could have undermined the defense theory of the case. Ali's arguments about the potential benefits of a pretrial deposition of the EMT, the physician, and other witnesses are speculative. Therefore, Ali has not shown prejudice resulting from the failure to depose them. Ali has thus failed to establish a
Ali further asserts that he received substandard representation because trial counsel did not hire medical experts. Ali has not rebutted the presumption, however, that the decision to forego hiring experts was a reasonable strategy,
Ali asserts that defense counsel's failure to object to the prosecutor's introduction of Nagy's testimony, knowing it was false and coerced by the state, violated his right to the effective assistance of counsel. Ali further asserts that the prosecutor's knowing reliance on perjured, coerced testimony (Claim 3 here), was prosecutorial misconduct. That claim, however, was procedurally defaulted when defense counsel failed to object to the testimony at trial.
Ali points to no record evidence to support his claim that the prosecutor knowingly relied on perjured testimony, or that Nagy's testimony was coerced by the state's threat to take away her children, and he offers no affidavit or other proof of those facts. Where there is no evidence to support a prosecutorial misconduct objection asserting that the victim's testimony was false and coerced, trial counsel's decision not to object to such testimony was not objectively unreasonable. Claim 3, asserting such charges of prosecutorial misconduct, is purely speculative. Therefore, Ali has not established a
Ali contends that the prosecutor made improper remarks, expressing his personal opinion of Ali's guilt in his summation. That summation began with a reference to a song about domestic violence, and the prosecutor's comparison of the lyrics to Ali's motive:
Towards the end of the summation, the prosecutor stated:
Defense counsel did not object to any part of the summation.
"[A] prosecutor may draw reasonable inferences from the facts proven and has great latitude in closing argument to both summarize and discuss the evidence presented to the jury and to urge them to draw inferences of guilt from the evidence."
Even if the prosecutor had overstepped, however, the decision not to object to a closing argument is frequently a question of strategy. A competent defense lawyer may choose not to object to avoid drawing attention to a particular remark. Further, even if Ali could demonstrate that the failure to object to the summation was error, Ali has not demonstrated prejudice resulting from counsel's failure to object, where the trial court instructed the jury that closing arguments were not evidence. Therefore, the warden's motion for summary judgment is granted on Claim 4(f).
Ali asserts that Attorney Introcaso's representation in the sentencing proceeding was ineffective because, among other things, Attorney Introcaso: did not challenge inaccuracies about his criminal record in the PSI; did not review a sentencing memorandum prepared by Ali's trial counsel; and did not offer a sentencing proposal on Ali's behalf. This court notes that the court in the sentencing proceeding had before it a memorandum filed by Ali's prior defense attorneys.
Neither the February 2, 2009, sentencing hearing transcript, nor the PSI, are part of this court's record at this time. This court requires access to the sentencing hearing transcript to resolve Claim 5. Accordingly, the dispositive motions filed by Ali and the respondent are denied without prejudice to refiling after the sentencing hearing transcript is made part of this court's record, in accordance with the directions set forth in the conclusion of this order.
Ali asserts that he was denied the effective assistance of appellate counsel because NHAD Attorney Borchardt represented Ali while operating under a conflict of interest. Ali further asserts that Attorney Borchardt provided deficient appellate representation by failing to brief all of the issues raised in Ali's notice of appeal, including Claims 1(a) and 2(b) and a
To support his conflict of interest claim as to appellate counsel, Ali asserts that Attorney Borchardt represented Ali even though Ali had asserted a
Ali has asserted in this court that he does not know why NHPD counsel identified a conflict of interest after trial.
Moreover, Attorney Borchardt's failure to brief ineffective assistance of counsel in the direct appeal does not manifest that an actual conflict of interest adversely affected his representation of Ali. That Sixth Amendment issue was not included in the notice of appeal filed by Attorney Introcaso, but was not waived for having been omitted from the appeal. The NHSC has declared its strong preference for having such claims raised only after a record has been developed through postconviction proceedings,
Ali asserts that Attorney Borchardt's decision not to brief issues on appeal was objectively unreasonable and prejudicial. The issues that were not briefed in Ali's appeal include:
"[A]ppellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal."
The Superior Court, in its March 2012 order denying Ali's state habeas petition, rejected a
Applying the proper deferential standards of review to the state court's findings and rulings relating to the federal issues raised there, this court notes that the Superior Court in March 2012 articulated and applied the proper
Similarly, this court finds no prejudice warranting relief in Attorney Borchardt's failure to brief the overcharging issue on appeal. Ali points to no evidence in the state court record to support his claims of racial bias, jury confusion, harassment, and unfair prejudice, and therefore has not shown that Claim 2 was clearly stronger than the issues briefed by Attorney Borchardt.
Deferring to the relevant state court findings of fact and conclusions of law on the "same evidence" double jeopardy claim conceded by the state,
Accordingly, this court concludes that Ali has not shown that Attorney Borchardt's decision to forego briefing that claim was objectively unreasonable, or prejudicial, for the purposes of establishing a
Ali further challenges Attorney Borchardt's failure to brief: (1) the trial court's evidentiary rulings allowing the victim to testify to hearsay concerning her broken collarbone, and allowing an officer to testify to the victim's out-of-court statements to counter the claim that the witness's statements have been inconsistent, and (2) the sufficiency of the evidence on a false imprisonment charge. In light of the abundant alternative evidence on the victim's injuries, the trial court's limiting instructions relating to the officer's testimony, and the overwhelming evidence of guilt, this court concludes that the likelihood of a successful appeal on those unbriefed issues was nil. This court further accepts as reasonable in light of the state court record, and as neither contrary to nor an unreasonable application of federal law, the trial court's findings and conclusions with respect to the sufficiency of the evidence on the false imprisonment charge.
Ali has not shown that the issues not briefed were clearly stronger than those briefed, and he has thus failed to establish a
Judge McCafferty, in her May 2, 2012, report and recommendation (doc. no. 17) in this matter, noted the unsettled state of the law on the issue of whether a claim for federal habeas relief may be based on ineffective assistance of counsel in proceedings concerning a motion for a new trial, filed while the direct appeal is stayed.
Assuming that a claim challenging post-conviction counsel's performance could be grounds for federal habeas relief, Claim 7 fails here. Attorney Al-Marayati's advice on whether Ali should withdraw the motion for a new trial must be considered in light of the particular claim asserted in that pro se motion: trial counsel's failure to file an interlocutory appeal of the Superior Court's orders allowing two charges based on the same evidence to go to the jury. Defense counsel had moved to dismiss one of the indictments after the state's opening, and renewed that motion at the close of the state's case. The trial court denied both motions to dismiss.
At the time Ali sought to assert the claim of ineffective assistance of trial counsel, the NHSC appeal had been stayed because of the new trial motion. Attorney Borchardt had already filed a brief on Ali's behalf, and the state, in its brief, had already conceded the double jeopardy issue. A competent postconviction counsel may conclude that it would be prudent to defer the collateral challenge until after the underlying double jeopardy issue is resolved in the direct appeal, and so advise the client to withdraw that claim.
Furthermore, Ali has not shown that Attorney Al-Marayati's representation was objectively unreasonable, with respect to counsel's general assessment of trial counsel's and appellate counsel's representation, and its effect on the withdrawal of Ali's motion for a new trial. Ali has not shown that he would have prevailed on any claim of ineffective assistance of counsel in a post-conviction proceeding in the state courts, and he has not prevailed on any such claim that this court has yet addressed. A competent post-conviction counsel could conclude from reviewing the record that trial and appellate counsel had not provided ineffective assistance of counsel. Therefore, the warden's motion for summary judgment is granted on Claim 7.
Applying the standard set forth previously in this case,
The Due Process Clause requires recusal if a judge is interested in the outcome of a particular case, or if there are other circumstances "`in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.'"
Moreover, there is no other ground upon which this court could find that Justice Conboy's prior involvement in Ali's 2004 case rendered her involvement in the direct appeal a violation of Ali's due process rights. Justice Conboy's role in Ali's 2004 case was limited to issuing a TRO on March 29, 2004, when Justice Conboy was a Superior Court judge, upon reviewing a complaint detailing allegations of domestic abuse asserted by an individual named Loretta LeeRoy, and directing that a hearing on those allegations be held a week later. Superior Court Judge Philip Mangones presided at the April 8 hearing and issued the final protective order. Ali's September 2004 conviction in Goffstown District Court arose out of charges that Ali violated Judge Mangones's final order. Justice Conboy was not involved in the Goffstown District Court proceedings relating to that conviction. Where there were layers of superseding court proceedings between Justice Conboy's involvement in the case and the relevant conviction, and where the 2004 conviction was not based on Ali's violation of any order issued by Justice Conboy, the Due Process Clause did not require Justice Conboy's recusal from Ali's direct appeal of the 2008 conviction.
Ali has moved for summary judgment (doc. no. 30) on his petition, and has also moved to dismiss the Class A felony indictment,
For the foregoing reasons, the court orders as follows:
1. The respondent's motion for summary judgment (doc. no. 41) is granted in part and denied in part. The motion (doc. no. 41) is granted with respect to Claims 1-3, 4(a)-(f), and 6-9, and Ali's § 2254 petition is denied as to those claims. The respondent's motion (doc. no. 41) is denied, without prejudice, as to Claims 4(g) and 5. The respondent may refile a motion for summary judgment on Claims 4(g) and 5, after furnishing this court with the additional transcripts and portions of the state court record, as specified in this order.
2. Ali's motions for summary judgment and to dismiss a state indictment (doc. nos. 30 and 36) are denied.
3. Within thirty days of this order, the respondent shall furnish this court, and serve petitioner, with the following:
4. Within thirty days of filing all three transcripts specified above, the respondent shall either file a motion for summary judgment on Claims 4(g) and 5, or notify this court, in writing, that an evidentiary hearing is necessary to resolve disputed issues of material fact relating to those claims.
SO ORDERED.
