PAUL J. BARBADORO, District Judge.
Before the court is respondent's motion for summary judgment (doc. no. 37), and supplemental brief related to that motion (doc. no. 41), seeking judgment as a matter of law on all claims asserted in Christopher Legere's amended petition for a writ of habeas corpus (doc. no. 27), filed pursuant to 28 U.S.C. § 2254. Legere objects.
In the late evening of June 24, 2006, and the early morning hours of June 25, 2006, Christopher Legere was at Three Cousins, a restaurant and bar in Manchester, New Hampshire. Legere's girlfriend, Amy Caswell, was working that night as a bartender at Three Cousins, and Legere generally spent the evening there when she was working. On June 24, 2006, Legere was at the bar socializing and singing karaoke when something drew his attention to the street outside of the bar.
At some point, John Denoncourt rode up on his motorcycle and was talking to Tracy Beardsdell and William Hill outside Three Cousins. Beardsdell and Hill were arguing because Hill wanted to ride Denoncourt's motorcycle, and Beardsdell felt that Hill was too intoxicated. Although Denoncourt was not a member of the Hells Angels Motorcycle Club, he was wearing a "Hells Angels support shirt" that evening. Beardsdell and Hill told Denoncourt that he could not go into Three Cousins wearing a Hells Angels shirt because Three Cousins had a policy against its patrons wearing any apparel showing membership in or support for any motorcycle club. Denoncourt indicated that he didn't care. Legere, who was a member of the Outlaws Motorcycle Club, was wearing a black Outlaws shirt, but had covered the word "Outlaws" with tape.
Legere went outside when he, and other Three Cousins patrons, became aware of the commotion. A fight or struggle ensued, involving a number of people, including Legere. During that altercation, a number of people saw Legere being held back, or struggling with, several people. In the end, Legere shot Denoncourt in the chest. Denoncourt tried to leave, but, approximately 340 feet from the altercation, fell and died from the gunshot wound. Legere left the scene in a white sports utility vehicle, and returned shortly thereafter on his motorcycle, wearing a different shirt. Legere helped Caswell at Three Cousins for a while, and then left. He was later charged with Denoncourt's murder.
A number of people present inside and outside Three Cousins on the night of the shooting testified at Legere's trial. Daniel Nadeau, a Three Cousins patron, testified that he saw Legere holding a small black gun, and shooting it as he jumped over people. Nadeau stated that he saw Legere point and shoot the gun at an individual running away from the scene. Nadeau also testified that during the shooting, several people were trying to hold Legere back and that one person screamed, "Stop, Buster, Stop." Other witnesses at trial testified that: Legere's nickname is "Buster"; Legere is a member of the Outlaws; the shooter was wearing a black shirt; Legere was wearing a black shirt at the time of the shooting; prior to the shooting, Legere had a hard metal object in his waistband, under his shirt; and after the shooting, someone yelled something to the effect that "Buster shot a Hells Angel" and that everyone should leave because the Hells Angels and/or the police were going to be arriving.
The state called Maryland State Police Lt. Terry Katz as an expert witness to testify about the history of the violent rivalry between the Hells Angels and Outlaws motorcycle clubs, particularly over territorial issues. Lt. Katz testified that the Outlaws and Hells Angels have an antagonistic relationship extending back decades, that has resulted in violence, including gang fights, serious assaults, and homicides. He further testified that intrusion on the territory of one of those clubs by the other would result in a confrontation that could ultimately turn violent. Lt. Katz explained that both the Hells Angels and the Outlaws consider themselves to be "One Percenters," which Katz explained means that "they exist only by their own rules, not society's." Katz also told the jury that two of the Outlaws' mottos are "God forgives, Outlaws don't" and "Snitches are a dying breed."
In 2007, a jury convicted Legere of second degree murder, and Legere was sentenced to serve 45-90 years in prison.
In 2010, Legere, through court-appointed post-conviction counsel, filed a motion for a new trial ("MNT") in the HCSC, asserting that Legere's trial attorney had failed to provide him with effective assistance of counsel. The HCSC held an evidentiary hearing on Legere's motion, and Legere moved to amend the MNT. The HCSC denied both the MNT and the motion to amend.
While the MNT appeal was pending, Legere filed a state habeas petition in the Merrimack County Superior Court ("MCSC"), which that court denied.
Legere filed a petition for a writ of habeas corpus in this court before the above-described state proceedings had ended. This court stayed the petition to allow Legere to exhaust his state remedies as to the claims in his petition.
Legere raises the following claims for relief:
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);
Respondent argues that certain claims in Legere's petition must be deemed 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."
A federal court cannot review a procedurally defaulted claim in a § 2254 petition, unless the petitioner demonstrates either "actual innocence," or "cause" and "prejudice."
Unexhausted claims of ineffective assistance of counsel cannot serve as cause for the procedural default of a different claim.
Legere has raised ineffective assistance of counsel as cause for any procedural defaults of his claims that may have occurred in the state proceedings. Accordingly, I address Legere's ineffective assistance of counsel claims (Claims 3(a)-(c)) before resolving any other claims that the respondent alleges are procedurally defaulted.
Legere asserts that trial counsel provided him with ineffective assistance by: failing to object to the prosecutor's allegedly improper closing argument (Claims 3(a)(i) and (ii)), failing to object to improper expert testimony (Claim 3(b)), and failing to request that the judge give the jury a limiting instruction concerning the appropriate use of expert testimony (Claim 3(c)). The HSCS rejected each of those claims on the merits.
To prove a Sixth Amendment violation based on the failings of defense counsel, a petitioner must demonstrate both (1) that counsel's performance was deficient, meaning that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment; and (2) that the deficient performance prejudiced the defense.
As to trial counsel's failure to object to the prosecutor's injection of his personal opinion into his closing argument, the last reasoned state court decision is the August 21 NHSC Opinion. The NHSC, applying a state standard equivalent to
As to trial counsel's failure to request a limiting instruction concerning the expert evidence regarding motorcycle gangs, the last reasoned state court decision is also the August 21 NHSC Opinion. Legere here argues that, without a limiting instruction, the jury was free to consider the expert testimony as evidence that Legere had a propensity for violence and unlawfulness, or for other improper purposes. At the May 24, 2011, hearing in the HCSC on Legere's MNT, defense counsel testified that his decision not to request a limiting instruction was strategic, and he explained his rationale.
Legere claims that his trial counsel was ineffective for failing to object to the prosecutor's closing argument to the extent the prosecutor relied on facts that Legere claims were not supported by the trial evidence, and for failing to object to both the admission and extent of the expert testimony. The HCSC ruled against Legere on both issues in the MNT Order, but Legere's court-appointed appellate counsel chose not to brief those issues, and the NHSC denied Legere's motion to file a supplemental brief addressing the issues.
Citing state court cases indicating that New Hampshire courts consistently apply the rule that issues not briefed are waived,
Legere points to appellate counsel's failure to brief those issues, coupled with the NHSC's decision precluding him from filing a supplemental pro se brief, as cause and prejudice for the default. I examine this argument by first considering whether Legere was prejudiced by his inability to brief his claims in the NHSC.
In this instance, the HCSC provided the last reasoned state court opinion on this claim, and that court determined that the prosecutor's summation, to the extent it relied on facts Legere claims were not supported by the trial evidence, was, in fact, fair argument. For reasons stated below with respect to Claim 1(a), this court must defer to that finding. Therefore, Legere has not carried his burden of showing prejudice with respect to the failure to brief Claim 3(a)(i) in the NHSC.
As to Claim 3(b), Legere has failed to show prejudice because the NHSC determined in Legere's direct appeal that the expert testimony was admissible. Legere has not shown any reasonable probability of a different result if Claim 3(b) had been briefed in the appeal of the MNT Order. Legere has thus failed to show prejudice with respect to those procedurally defaulted claims. This court is thus precluded court from granting relief on them, and summary judgment is properly granted on Claims 3(a)(i) and 3(b).
Respondent moves for summary judgment on Claim 1(a), regarding the prosecutor's reliance on facts not in evidence in his closing argument, on the ground that the claim is procedurally defaulted, thereby precluding federal habeas relief. The HCSC cited trial counsel's failure to object to the prosecutor's closing argument as to this issue, as an independent ground for that court's order rejecting Claim 1(a) in the new trial proceedings.
Legere has argued that ineffective assistance of trial counsel, in failing to object to the challenged argument, was cause for the default, and resulted in prejudice. In the MNT Order, however, the HCSC found that the challenged portions of the prosecutor's argument were fair statements based on the evidence at trial and were thus proper.
Accordingly, Legere has not shown cause and prejudice arising out of his trial counsel's failure to object to the prosecutor's reliance on facts not in evidence in closing argument. Nothing in the record suggests any other basis upon which to excuse the procedural default of this claim. Petitioner, therefore, is not entitled to relief on Claim 1(a), and summary judgment is warranted on Claim 1(a).
Legere asserts that during closing argument, the prosecutor expressed his personal opinion of: the credibility of certain witnesses, Legere's guilt, and of the truth or falsity of certain evidence at trial. None of these allegedly improper comments were objected to at trial, and were thus not preserved for direct appeal. The claims are thus procedurally defaulted, as discussed above.
Again, Legere asserts that the cause of the procedural default was his attorney's erroneous failure to object to the improper argument at trial. For reasons set forth above with respect to Claim 3(a)(ii), Legere has not shown that his counsel's performance was constitutionally deficient.
Legere challenges the admission at his trial of expert testimony from Lt. Katz, concerning the Outlaws and Hells Angels. Legere alleges that the admission of this testimony violated his due process right to a fundamentally fair trial under the Fourteenth Amendment.
Legere did not explicitly raise federal due process claims concerning the admission of the testimony challenged in Claim 2, either in the trial court, or on direct appeal. On direct appeal, Legere challenged the admission of the expert testimony under state law, alleging that the prejudicial effect of the testimony outweighed its probative value. In its decision affirming Legere's conviction, the NHSC found that, under state law, the testimony was properly admitted.
As explained above in regard to Claim 1(b), Legere's federal due process claim concerning the Katz testimony is procedurally defaulted, as it was not raised on direct appeal. Further, Legere cannot demonstrate prejudice excusing the procedural default, as the last state court to rule on whether the evidence itself was prejudicial, the NHSC on direct appeal, ruled that all of the expert testimony was properly admitted.
Accordingly, Legere has failed to demonstrate "prejudice" to excuse the procedural default of Claim 2. Legere, therefore, is not entitled to relief on Claim 2, and the motion for summary judgment is properly granted on that claim.
The Rules Governing Section 2254 Proceedings ("§ 2254 Rules") require the court to "issue or deny a certificate of appealability when it enters a final order adverse to the party." § 2254 Rule 11(a). The court will issue the certificate "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Legere has failed to make such a showing. Accordingly, the district judge should decline to issue a certificate of appealability in this case.
For the foregoing reasons, the court orders:
1. Respondent's motion for summary judgment (doc. no. 37) is GRANTED.
2. The petition (doc. no. 27) is DENIED.
3. The court declines to issue a certificate of appealability.
SO ORDERED.
