Fischer v. NH Parole Board

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
David Fischer
v. Case No. 15-cv-130-PB
New Hampshire Adult Parole Board
REPORT AND RECOMMENDATION
After a jury trial in the New Hampshire Superior Court,
David Fischer (“Fischer”) was convicted “on two counts of second
degree assault, both of which resulted in extended terms of
imprisonment.” State v. Fischer (Fischer I), 165 N.H. 706, 709
(2013) (citing N.H. Rev. Stat. Ann. (“RSA”) §§ 631:2, I(c) &
651:6, II(a)). Fischer now petitions for a writ of habeas
corpus. See 28 U.S.C. § 2254. Before this magistrate judge for
a report and recommendation are respondent’s motion for summary
judgment and a filing from Fischer captioned “Memorandum of Law
in Support of Petition for Writ of Habeas Corpus and in
Objection to Respondent’s Motion for Summary Judgment.” For the
reasons detailed below, respondent’s motion for summary judgment
should be granted.
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Background
Fischer’s convictions resulted from events that took place
in the home he shared his wife, Tracy.1 In its opinion on
Fischer’s direct appeal, the New Hampshire Supreme Court
(“NHSC”) described those events this way:
At 10 p.m. on February 18, 2010, the victim, the
defendant’s wife, returned to their home in Dover from
her shift as a nurse at York Hospital. She and the
defendant argued. She then removed her rings, threw
them at him, and told him that she “couldn’t do this
any more.” In response, the defendant grabbed her by
the throat, pushed her head into the wall behind her
with such force that it dented the wall, threw her to
the floor, and left the house. . . .
The defendant turned off the lights in the
kitchen and went upstairs. When the victim went from
the living room into the kitchen and turned the lights
back on, the defendant came downstairs, turned the
lights off, and lunged at her. He grabbed her from
behind, put his hand over her mouth, and brought her
to the floor. Then he stepped on her head, preventing
her from getting up. He grabbed her by the hair and
sweatshirt and dragged her into the living room. The
sweatshirt tightened around her neck so she could not
breathe or speak. . . .
In the morning, the defendant apologized and said
that he wanted “to fix things,” but the victim said
that she could not stay with him. As she was leaving
the house for work, the defendant charged at the door,
slamming it on her finger.
Fischer I, 165 N.H. at 709.
1 Fischer’s indictments refer to his wife as “Tracy
Fischer,” while the transcript of his trial refers to her as
“Tracy Loignon.” Unless it is quoting those documents, the
court will refer to Fischer’s wife as “Tracy.”
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Based upon the foregoing, Fischer “was indicted on three
counts of second degree assault.” Fischer I, 165 N.H. at 710.
One charge arose from the door-slamming incident. The other
charges arose from two incidents that took place the night
before, which resulted in two separate indictments. One of them
charges that Fischer
RECKLESSLY CAUSE[D] BODILY INJURY TO ANOTHER UNDER
CIRCUMSTANCES MANIFESTING AN EXTREME INDIFFERENCE TO
THE VALUE OF HUMAN LIFE IN THAT [HE] GRABBED TRACY
FISCHER BY THE NECK, SLAMMED HER HEAD INTO A WALL AND
THREW HER ONTO THE FLOOR, CAUSING CONTUSIONS AND
MUSCLE STRAIN TO HER HEAD AND NECK, SUCH CONDUCT
CONSTITUTING CIRCUMSTANCES MANIFESTING AN EXTREME
INDIFFERENCE TO THE VALUE OF HUMAN LIFE.
The other indictment charges that Fischer
RECKLESSLY CAUSE[D] BODILY INJURY TO ANOTHER UNDER
CIRCUMSTANCES MANIFESTING AN EXTREME INDIFFERENCE TO
THE VALUE OF HUMAN LIFE IN THAT [HE] KNOCKED TRACY
FISCHER TO THE FLOOR, STEPPED ON HER HEAD AND DRAGGED
HER BY HER HAIR AND SWEATSHIRT HOOD FROM THE KITCHEN
INTO THE LIVING ROOM, CAUSING CONTUSIONS AND MUSCLE
STRAIN TO HER HEAD AND NECK, SUCH CONDUCT CONSTITUTING
CIRCUMSTANCES MANIFESTING AN EXTREME INDIFFERENCE TO
THE VALUE OF HUMAN LIFE.
Fischer was tried on all three charges.
After the State rested its case, defense counsel moved to
dismiss all three charges, on grounds that the State had not
introduced sufficient evidence to carry its burden of proof.
Judge Brown denied the motion. The jury acquitted Fischer of
the charge arising from the door-slamming incident, but found
him guilty on the two other counts. For each of his
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convictions, Fischer was sentenced to an extended term of
imprisonment, pursuant to RSA 651:6, II(a).
Fischer appealed his convictions, and was represented by
counsel on appeal. The NHSC described Fischer’s claims of error
this way:
(1) the trial court erred in admitting testimony under
the excited utterance hearsay exception; (2) the
evidence was insufficient to prove that his conduct
manifested extreme indifference to the value of human
life; (3) the trial court erred in instructing the
jury on extreme indifference to the value of human
life; (4) the trial court violated his rights against
double jeopardy by sentencing him on both second
degree assault convictions; (5) the trial court erred
in imposing extended terms of imprisonment; and (6)
the trial court erred in failing to instruct the jury
that it must unanimously find a specific bodily
injury.
Fischer I, 165 N.H. at 709.
Notwithstanding the fact that he was represented by
counsel, Fischer made several attempts to file pro se briefs in
the NHSC, all of which were rebuffed.2
While Fischer’s appeal was pending, he filed a motion for a
new trial in the superior court. In that motion, he claimed
2 Specifically, he filed: (1) a pro se motion for leave to
file a pro se supplemental brief; (2) a pro se supplemental
brief; (3) a renewed pro se motion for leave to file a pro se
supplemental brief; (4) a pro se motion for reconsideration of
the denial of his renewed motion; (5) a pro se motion for leave
to file a pro se reply brief; and (6) a pro se motion for
reconsideration of the denial of his motion for leave to file a
reply brief. The NHSC denied all five of Fischer’s motions and
struck his supplemental brief.
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that his trial counsel provided him with ineffective assistance
due to his:
(1) fail[ure] to investigate the victim and interview
witnesses; (2) failure to seek the victim’s mental
health record; (3) failure to seek timely discovery of
text messages and phone records; (4) failure to seek
production of the victim’s work records; (5) failure
to obtain a transcript of the victim’s prior sworn
testimony from a protection order hearing held on
March 2, 2010; (6) failure to obtain the services of a
pharmaceutical expert; (7) conceding guilt in [his]
closing argument; (8) failure to clarify issues in the
closing argument; and (9) failure to object to jury
instructions.
Resp’t’s Mem. of Law (Doc. No. 12-1) 6. Petitioner concurs with
respondent’s characterization of the issues he raised in his
motion for a new trial. Judge Wageling denied Fischer’s motion,
and denied his motion for reconsideration. Fischer appealed,
and the NHSC declined his appeal.
After the NHSC affirmed his convictions, Fischer petitioned
the superior court for a writ of habeas corpus, asserting claims
of ineffective assistance of trial counsel and ineffective
assistance of appellate counsel. With regard to trial counsel,
Fischer identified the following grounds:
(1) failure to move for a directed verdict based on
the sufficiency of the evidence on the element of
bodily injury; (2) failure to object to the trial
court’s instruction on bodily injury; (3) failure to
object to the amendment of the indictments; (4)
failure to request a unanimity instruction; (5)
failure to move to exclude witness Schumaker’s
testimony as inadmissible hearsay; and (6) failure to
ensure that jury was instructed that “extreme
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indifference to the value of human life” was a
heightened form of ordinary recklessness.
Resp’t’s Mem. of Law (Doc. No. 12-1) 6-7. With regard to
appellate counsel, he raised these grounds:
(1) failure to challenge the trial court’s instruction
on bodily injury on appeal as plain error; (2) failure
to challenge the amendment of the indictments on
appeal; (3) failure to provide the state court with
case law on the failure to give a unanimity
instruction as plain error; and (4) failure to
“properly argue” that [the] jury was instructed that
“extreme indifference to the value of human life” was
a heightened form of ordinary recklessness.
Id. at 7. As with his motion for new trial, petitioner concurs
with respondent’s characterization of the issues he raised in
his petition for a writ of habeas corpus in the state courts.
Judge Schulman denied the petition. Fischer appealed, and the
NHSC declined his appeal.
This action followed. In it, petitioner raises the twelve
claims described in the order on preliminary review, Document
No. 2. Rather than reciting petitioner’s claims here, en masse,
the court describes them individually, in the body of this
report and recommendation.
The Legal 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
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U.S.C. § 2254(a). Moreover, “[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).
“Generally speaking, a petitioner’s failure to exhaust all state
remedies is ‘fatal to the prosecution of a federal habeas
case.’” Sanchez v. Roden, 753 F.3d 279, 294 (1st Cir. 2014)
(quoting Coningford v. Rhode Island, 640 F.3d 478, 482 (1st Cir.
2011)). To exhaust the remedies available in state court, “a
petitioner must have tendered his federal claim in such a way as
to make it probable that a reasonable jurist would have been
alerted to the existence of the federal question.” Jaynes v.
Mitchell, 824 F.3d 187, 192 (1st Cir. 2016) (quoting Sanchez,
753 F.3d at 294). 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).
Turning to the standard of review, the power of the federal
courts to grant habeas corpus relief to state prisoners has been
significantly limited by passage of the Anti-Terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. §
2254(d). Under that statute, when a prisoner brings a claim in
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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, [28 U.S.C.]
§ 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412
(2000); or that it “involved an unreasonable
application of” such law, § 2254(d)(1); or that it
“was based on an unreasonable determination of the
facts” in light of the record before the state court,
§ 2254(d)(2).
Harrington v. Richter, 562 U.S. 86, 100 (2011) (parallel
citations omitted); see also Logan v. Gelb, 790 F.3d 65, 70 (1st
Cir. 2015). As to the distinction between decisions that are
contrary to federal law and those that involve an unreasonable
application of such law, the Supreme Court has explained:
Under the “contrary to” clause, a federal habeas court
may grant the writ if the state court arrives at a
conclusion opposite to that reached by this Court on a
question of law or if the state court decides a case
differently than this Court has on a set of materially
indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant
the writ if the state court identifies the correct
governing legal principle from this Court’s decisions
but unreasonably applies that principle to the facts
of the prisoner’s case.
Taylor, 529 U.S. at 412–13. However, if a claim has not been
adjudicated on the merits in state court, it is subject to de
novo review. See Jaynes, 824 F.3d at 192 (citation omitted).
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Discussion
I. Claim One
Petitioner first claims that RSA 631:2, I(c), the second
degree assault statute under which he was convicted, is
unconstitutionally vague, in violation of the Fifth and
Fourteenth Amendments.3 Petitioner first raised this issue in a
pre-trial motion to dismiss. That motion was denied, but the
record appears to include no written ruling on it. Fischer
asserted the putative unconstitutionality of RSA 631:2, I(c) in
his notice of appeal to the NHSC, but his appellate counsel did
not brief that issue. Thereafter, Fischer raised it in the pro
se supplemental brief he attempted to submit to the NHSC.
Respondent argues that it is entitled to judgment as a
matter of law on Claim One because: (1) Fischer waived it in the
state courts; (2) the claim involves only the interpretation of
a state statute, which is not the proper subject of federal
habeas review; (3) the claim is unexhausted; and (4) the claim
fails on the merits.
Respondent’s first argument lack merit. As Judge McAuliffe
has explained:
3 The Fifth Amendment to the United States Constitution
provides that “[n]o person shall be . . . deprived of life,
liberty, or property, without due process of law.” The
Fourteenth Amendment applies the requirements of the Fifth
Amendment to the states. See U.S. Const. amend. XIV, § 1.
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A habeas petitioner can fail to exhaust a claim by
waiving it. Or, a claim may be procedurally defaulted
when a state court determines that a criminal
defendant has waived it. But saying that a claim has
been “waived,” without discussing exhaustion or
procedural default, does not advance a meritorious
argument.
Haniffy v. Gerry, No. 08-cv-268-SM, 2010 WL 1462346, at *1
(D.N.H. Apr. 12, 2010) (footnote omitted).
In its second argument, respondent relies upon Estelle v.
McGuire, which excluded from federal habeas review an inquiry
into whether certain “evidence was incorrectly admitted pursuant
to California law,” 502 U.S. 62, 68 (1991) (internal quotation
marks and ellipsis omitted). But Claim One does not involve a
determination of whether the trial court followed New Hampshire
law; it is a claim that a New Hampshire statute violates the
United States Constitution. Thus, Estelle is of no help to
respondent.
Turning to exhaustion, respondent argues that the manner in
which Fischer tendered his vagueness claim in his pro se
supplemental brief to the NHSC was insufficient to adequately
present a federal constitutional claim to that court. Assuming,
without deciding, that presentation of an issue in a brief that
was stricken by the NHSC counts as presentation for the purposes
of exhaustion, which respondent appears to concede, Fischer
adequately presented his federal claim to the NHSC. In his
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brief, he relied upon a quotation from State v. Saucier, 128
N.H. 291, 296-97 (1986), which articulates a legal standard
concerning vagueness that is virtually identical to the
constitutional standard stated by the U.S. Supreme Court in FCC
v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012).
That was sufficient to exhaust the state court remedies
available for redressing the issue on which Claim One is based.
See Sanchez, 753 F.3d at 294 (describing various ways in which
exhaustion requirement may be met).4
Because respondent’s first three arguments are all
unavailing, the court turns to the merits.
4 In Sanchez, the court of appeals explained that a habeas
petitioner may satisfy the exhaustion requirement in several
ways,
including “reliance on a specific provision of the
Constitution, substantive and conspicuous presentation
of a federal constitutional claim, on-point citation
to federal constitutional precedents, identification
of a particular right specifically guaranteed by the
Constitution, and assertion of a state-law claim that
is functionally identical to a federal constitutional
claim.” Coningford, 640 F.3d at 482. In addition,
“citations to state court decisions which rely on
federal law or articulation of a state claim that is,
‘as a practical matter, [ ] indistinguishable from one
arising under federal law’ may suffice to satisfy the
exhaustion requirement.” Clements [v. Maloney], 485
F.3d [158,] 162 [(1st Cir. 2007)] (alteration in
original) (quoting Nadworny v. Fair, 872 F.2d 1093,
1099–1100 (1st Cir. 1989)).
753 F.3d at 294.
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As a preliminary matter, respondent’s brief is silent on
the standard of review for Claim One.5 Petitioner’s brief
follows suit.6 Given petitioner’s contention that he exhausted
the issue he presents in Claim One by including it in his pro se
supplemental brief, the NHSC’s refusal to accept that brief, in
reliance upon State v. Belton, 150 N.H. 741, 750 (2004), would
appear to be a decision on the merits, engendering the highly
deferential AEDPA standard of review. However, the state
court’s rejection of petitioner’s vagueness challenge even
survives de novo review.
The court begins its discussion by stating the relevant
legal principles:
A fundamental principle in our legal system is
that laws which regulate persons or entities must give
fair notice of conduct that is forbidden or required.
See Connally v. General Constr. Co., 269 U.S. 385, 391
(1926) (“[A] statute which either forbids or requires
the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its
meaning and differ as to its application, violates the
5 Indeed, respondent identifies no standard of review for
any of petitioner’s first four claims.
6 In addition, like respondent, petitioner identifies no
standard of review for Claim Four. Moreover, while he does
identify standards of review for Claims Two and Three, the
standards he identifies are not those applicable to habeas
review but, rather, are standards applicable to state-court
appellate review of trial court rulings. The reason for that is
self-evident: petitioner’s objection to respondent’s motion for
summary judgment consists largely of passages drawn, verbatim,
from various pleadings petitioner has previously filed in either
the superior court or the NHSC.
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first essential of due process of law”); Papachristou
v. Jacksonville, 405 U.S. 156, 162 (1972) (“Living
under a rule of law entails various suppositions, one
of which is that ‘[all persons] are entitled to be
informed as to what the State commands or forbids’”
(quoting Lanzetta v. New Jersey, 306 U.S. 451, 453
(1939) (alteration in original))). This requirement
of clarity in regulation is essential to the
protections provided by the Due Process Clause of the
Fifth Amendment. See United States v. Williams, 553
U.S. 285, 304 (2008). It requires the invalidation of
laws that are impermissibly vague. A conviction or
punishment fails to comply with due process if the
statute or regulation under which it is obtained
“fails to provide a person of ordinary intelligence
fair notice of what is prohibited, or is so
standardless that it authorizes or encourages
seriously discriminatory enforcement.” Ibid.
Fox Television, 132 S. Ct. at 2317 (parallel citations omitted).
The criminal statute under which Fischer was convicted, and
that he now challenges as unconstitutionally vague, provides
that “[a] person is guilty of a class B felony if he . . .
[r]ecklessly causes bodily injury to another under circumstances
manifesting extreme indifference to the value of human life.”
RSA 631:2, I(c). According to petitioner, RSA 631:2, I(c) is
unconstitutionally vague because it includes two distinct states
of mind, “recklessness” and “extreme indifference to the value
of human life.” Claim One fails because even if a criminal
statute identifying two states of mind is unconstitutionally
vague, RSA 631:2, I(c) does not include two distinct states of
mind.
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In State v. Dufield, 131 N.H. 35 (1988), the NHSC was
called upon to construe RSA 630:1-b, I(b), which provides that a
“[a] person is guilty of murder in the second degree if . . .
[h]e causes [the] death [of another] recklessly under
circumstances manifesting an extreme indifference to the value
of human life.” In its decision in Dufield, the NHSC rejected
the defendant’s argument that “indifference” was “an element of
an offense comparable to a knowing or purposeful state of mind.”
131 N.H. at 37. Rather, the court held that
the function of proving the existence of
“circumstances manifesting extreme indifference” is to
establish, not a subjective state of mind, but a
degree of divergence from the norm of acceptable
behavior even greater than the “gross deviation” from
the “law-abiding” norm, by which reckless conduct is
measured [such that] the words in question would
describe a way of objectively measuring such a
deviation.
Id. (emphasis added). Because the NHSC has held that the phrase
“under circumstances manifesting extreme indifference” does not
denote a mental state, RSA 631:2, I(c) does not include two
distinct states of mind a defendant must possess. Because the
purported ambiguity upon which Claim One rests does not exist,
Claim One necessarily fails.
II. Claim Two
Petitioner’s second claim is that the trial court violated
his constitutional rights, under the Fifth, Sixth, and
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Fourteenth Amendments, by giving a jury instruction that failed
to fairly, adequately, and accurately, explain two elements of
second degree assault: “recklessly” and “under circumstances
manifesting extreme indifference to the value of human life.”
In his notice of appeal, Fischer challenged the trial court’s
decision not to give the instruction he had requested on the
elements of RSA 631:2, I(c), and also challenged, on
constitutional grounds, the instruction the court did give. The
brief that Fischer’s appellate counsel submitted to the NHSC
includes an argument that the trial court erroneously instructed
the jury on one element of second degree assault: “under
circumstances manifesting extreme indifference to the value of
human life.” Fischer also challenged the trial court’s jury
instructions in the pro se supplemental brief he attempted to
submit to the NHSC. In that brief, he framed an argument that
focused on the interrelationship between “recklessness” and
“extreme indifference” and built on his misapprehension that
those two elements describe two different states of mind.
Respondent argues that it is entitled to judgment as a
matter of law on Claim Two because: (1) Fischer waived it in the
state courts; (2) the claim involves only the interpretation of
state law; (3) the claim is unexhausted; and (4) the claim fails
on the merits. The court proceeds to the merits, see 28 U.S.C.
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§ 2254(b)(2), and reviews Claim Two de novo.
When he instructed the jury, Judge Brown explained the
elements of second degree assault in the following way:
[T]he remaining two charges . . . of second degree
assault involving extreme indifference have three
parts or elements. . . .
[T]he State must prove the following beyond a
reasonable doubt. That the Defendant caused bodily
injury to another person and the bodily injury was
inflicted under circumstances manifesting extreme
indifference to the value of human life. And the
Defendant acted recklessly.
Now, you already have the definition of
recklessly. I gave it to you a moment ago. That
definition, and all of its subparts, applies to these
two charges.7
7 This is the definition of “recklessly” that the judge had
previously given the jury:
To prove the Defendant acted recklessly, the State
must prove first that the Defendant was aware of a
substantial and unjustifiable risk.
This means there must be proof that the Defendant
knew that there was a substantial risk that his
conduct would cause a particular result.
Second, if the Defendant was aware of the risk,
there must be proof that the Defendant consciously
disregarded the risk. In other words, the Defendant
decided to disregard the risk and took a chance of
doing certain acts that a particular result would
occur.
Third, you must examine the circumstances known
to the Defendant. From what he knew of the
circumstances, you must decide whether his disregard
of the risk was a gross deviation from what the law-
abiding person would have done.
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Now, to act under circumstances manifesting
extreme indifference to the value of a human life
means that the Defendant’s acts demonstrate a blatant
disregard for the risk to . . . Tracy Loignon’s life.
It’s not necessary that the injury – or a series of
injuries themselves be life-threatening.
Trial Tr. (Dec. 8, 2010) 159:23 – 160:15.
Petitioner’s claim, as set out in the brief his appellate
counsel submitted to the NHSC, is that the trial court erred by
failing to give the following instruction:
[P]roof of extreme indifference to the value of human
life requires more than a demonstration that the
Defendant had created and disregarded a substantial
risk of death. “Extreme indifference to the value of
human life” requires proof beyond a reasonable doubt
of a “blatant disregard” of a substantial and
[un]justifiable risk of death.
The NHSC disagreed, “find[ing] no error in the trial court’s
instructions,” Fischer I, 165 N.H. at 714, and noting that the
trial court’s instruction “mirrored the language that [it had]
approved regarding the requirements for second degree assault,”
id. (citing State v. Fletcher, 129 N.H. 641, 644 (1987); State
v. Bailey, 127 N.H. 416, 424 (1985)).
Having outlined the factual basis for Claim Two, the court
turns to the governing law:
“Instructions in a state trial are a matter of state
law to which substantial deference is owed.” Niziolek
v. Ashe, 694 F.2d 282, 290 (1st Cir. 1982). “Because
federal habeas relief does not lie for errors of state
Trial Tr. (Dec. 8, 2010) 158:19 – 159:8.
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law, federal habeas review of a state court’s
application of [state law] is limited, at most, to
determining whether the state court’s finding was so
arbitrary or capricious as to constitute an
independent due process . . . violation.” Lewis v.
Jeffers, 497 U.S. 764, 780 (1990).
“Before a federal court may overturn a conviction
resulting from a state trial [because of an erroneous
jury instruction], it must be established not merely
that the instruction is undesirable, erroneous, or
even ‘universally condemned,’ but that it violated
some right which was guaranteed to the defendant by
the Fourteenth Amendment.” Cupp v. Naughten, 414 U.S.
141, 147 (1973). . . . To establish a due process
violation, the petitioner must show that the allegedly
defective jury instruction “so infected the entire
trial that the resulting conviction violates due
process.” [Estelle, 502 U.S. at 72].
Lucien v. Spencer, No. CA07-11338-MLW, 2015 WL 5824726, at *11–
12 (D. Mass. Sept. 30, 2015). A jury charge can violate a
criminal defendant’s right to due process if the instructions
given to the jury, when viewed as a whole, see Cupp, 414 U.S. at
146-47, do not require “[t]he government [to] prove beyond a
reasonable doubt every element of a charged offense,” Victor v.
Nebraska, 511 U.S. 1, 5 (1994) (citing In re Winship, 397 U.S.
358, 364 (1970)). Thus, jury instructions can violate a
criminal defendant’s right to due process if they: (1) shift the
burden of proof from the prosecution to the defendant, see Cupp,
414 U.S. at 148; or (2) lower the prosecution’s burden of proof
to something less than beyond a reasonable doubt, see id. at
147-48.
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Petitioner’s claim is that the jury charge in his case was
constitutionally infirm because the trial court incorrectly
instructed the jury on the elements: “recklessly” and “under
circumstances manifesting extreme indifference to the value of
human life,” RSA 631:2, I(c). Petitioner’s argument on this
point, which largely follows the argument in his pro se
supplemental brief, consists of a lengthy discourse comparing
and contrasting the elements of six different criminal statutes,
with a focus on the mental state required for each. That
discourse, however, appears to be premised on petitioner’s
misapprehension that the “extreme indifference” element of
second degree assault is directed to the mental state necessary
to prove that offense. Petitioner, however, fails to recognize
that “the fact that [a jury] instruction was allegedly incorrect
under state law is not a basis for habeas relief,” Estelle, 502
U.S. at 71-72 (citing Marshall v. Lonberger, 459 U.S. 422, 438
n.6 (1983)). Even if the trial court gave an instruction that
misstated New Hampshire law, and the NHSC erroneously affirmed
the trial court on this issue, that would not entitle Fischer to
habeas relief. See id.
Petitioner attempts to evade the rule of Estelle by arguing
that improperly instructing the jury on an element of an offense
is analogous to omitting an element, and that the disputed
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20
instruction is sufficiently erroneous to count as a constructive
omission that deprived him of due process. The court does not
agree. In the Supreme Court opinion on which petitioner relies,
the Court pointed out that on direct review, the omission of an
element from a jury instruction is subject to harmless-error
analysis because “[u]nlike such defects as the complete
deprivation of counsel or trial before a biased judge, an
instruction that omits an element of the offense does not
necessarily render a criminal trial fundamentally unfair or an
unreliable vehicle for determining guilt or innocence.” Neder
v. United States, 527 U.S. 1, 9 (1999) (emphasis omitted).
Neder eviscerates any claim that the jury instructions that
petitioner challenges in Claim Two deprived him of due process.
In light of the rule stated by the Supreme Court in
Estelle, Claim Two fails.
III. Claim Three
Petitioner’s third claim is that both the prosecutor and
the trial court violated his rights under the Fifth and
Fourteenth Amendments by telling the jury that Tracy’s testimony
did not need to be corroborated. Fischer asserted this claim in
his notice of appeal to the NHSC, but his appellate counsel did
not brief it. Thereafter, Fischer raised the issue in the pro
se supplemental brief he attempted to submit to the NHSC.
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Respondent argues that it is entitled to judgment as a
matter of law on Claim Three because: (1) Fischer waived it in
the state courts; (2) the claim involves only a matter of state
law; (3) the claim is unexhausted; and (4) the claim fails on
the merits because there is no authority for the proposition
that Tracy’s testimony required corroboration and because
Tracy’s testimony was, in fact, corroborated. Again, the court
proceeds directly to the merits, and reviews this claim de novo.
Claim Three arises from the following statements by the
prosecution during its closing argument:
Now the Judge is going to tell you that the law in New
Hampshire says that the victim’s testimony does not
need to be corroborated. . . .
. . . .
Tracy came in here and she told you what the Defendant
did to her. And as I indicated, the Judge is going to
tell you that that, in and of itself, is enough
evidence to convict the Defendant.
. . . .
[I]f you find Tracy’s testimony is credible – in other
words, if you believe her testimony, then you can
convict the Defendant without any additional evidence.
Trial Tr. (Dec. 8, 2010) 134:11-13, 135:20-23, 137:16-19.
Thereafter, the trial judge gave the following instruction:
The law does not require that the testimony of
the alleged victim be corroborated. This means that
if you find the alleged victim’s testimony is credible
– in other words, if you believe her testimony, then
you may return a verdict of guilty without additional
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evidence.
Trial Tr. (Dec. 8, 2010) 155:13-17.
Petitioner’s claim goes like this: (1) New Hampshire’s
sexual assault statute provides that “[t]he testimony of the
victim shall not be required to be corroborated in prosecutions
under this chapter,” RSA 632-A:6, I; (2) he was not charged with
sexual assault under RSA ch. 632-A; and (3) because he was not
tried on a charge of sexual assault, RSA 632-A:6, I, did not
apply to his case. As the court has already noted, “the fact
that [a jury] instruction was allegedly incorrect under state
law is not a basis for habeas relief,” Estelle, 502 U.S. at 71-
72 (citation omitted).8 For that reason, and because Claim Three
includes no assertion that the disputed jury instruction
impermissibly shifted or lowered the prosecution’s burden of
proof, see Cupp, 414 U.S. at 147-48, Claim Three fails.
IV. Claim Four
Petitioner’s fourth claim is that the trial court violated
his constitutional rights, under the Fifth, Sixth, and
Fourteenth Amendments, by admitting the testimony of witness
8 Although it has no need to opine on the correctness of the
jury instruction petitioner challenges, the court notes that
there is nothing in either New Hampshire law or the U.S.
Constitution that would preclude a jury from convicting a
criminal defendant on the uncorroborated testimony of a victim.
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Kristin Busch concerning statements that Tracy made to her under
the “excited utterance” exception to New Hampshire’s hearsay
rule. Respondent argues that it is entitled to judgment as a
matter of law on Claim Four because: (1) Fischer waived it in
the state courts; (2) the claim involves only a matter of state
law; (3) the claim is unexhausted; and (4) the claim fails on
the merits. Again, the court proceeds directly to the merits,
and reviews this claim de novo.
At trial, the jury heard testimony from Busch. Among other
things, Busch testified about a telephone conversation she had
with Tracy at some point after the third incident giving rise to
the charges against Fischer. The trial court admitted that
testimony under the “excited utterance” exception to New
Hampshire’s hearsay rule. See N.H. R. Evid. 803(2). On appeal,
the NHSC ruled that Busch’s testimony was inadmissible, see
Fischer I, 165 N.H. at 711, but held that the trial court’s
error in admitting it was harmless, “[b]ecause the alternative
evidence of the defendant’s guilt was overwhelming and because
the contested evidence was inconsequential and cumulative,” id.
at 712. The court elaborated:
The victim provided a graphic account of the assault
in the living room. She also described in detail the
assault in the kitchen. The officer who interviewed
the victim at the Dover police station testified that
she had a mark on the left side of her neck and a
bruise on the back of her shoulder. Photographs of
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24
the victim’s injuries and the dent in the wall were
admitted as exhibits at trial. The nurse who examined
the victim at the Wentworth–Douglass Hospital
emergency room testified that the victim told her that
she had been assaulted by her husband on the previous
night, and that during the assault she was pushed to
the floor, stepped on, and choked. The nurse noted
bruising on the victim’s back near her shoulder blade,
tenderness in her neck, tenderness on the back of her
head, and swelling, tenderness, and bruising on her
finger — injuries that the nurse testified were
consistent with the victim’s description of the
assaults.
Id.
Turning to the relevant legal principles, the “[v]iolation
of a rule of evidence, without more, is not enough to warrant
federal habeas review.” Parkhurst v. Warden, NH State Prison,
No. 09-cv-240-PB, 2011 WL 5330781, at *9 (D.N.H. Nov. 7, 2011)
(citing Evans v. Verdini, 466 F.3d 141, 145 (1st Cir. 2006)).
However:
An erroneous evidentiary ruling that results in a
fundamentally unfair trial may constitute a due
process violation and thus provide a basis for habeas
relief. See Coningford v. Rhode Island, 640 F.3d 478,
484 (1st Cir. 2011). However, to give rise to habeas
relief, “the state court’s application of state law
must be ‘so arbitrary or capricious as to constitute
an independent due process . . . violation.’” Id.
(quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)).
“To be a constitutional violation, a state evidentiary
error must so infuse the trial with inflammatory
prejudice that it renders a fair trial impossible.”
Petrillo v. O’Neill, 428 F.3d 41, 44 n.2 (1st Cir.
2005); see also Kater [v. Maloney], 459 F.3d [56,] 64
[(1st Cir. 2006)] (in habeas context, relevant inquiry
on appeal regarding evidentiary claim of error is
“whether any error rendered the trial so fundamentally
unfair that it violated the Due Process Clause”).
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25
Lyons v. Brady, 666 F.3d 51, 55–56 (1st Cir. 2012) (parallel
citations omitted).
In his memorandum of law, petitioner does not cite Lyons or
any other authority describing the legal standard set forth in
that decision. Rather, on state law grounds, he challenges the
NHSC’s determination that the admission of Busch’s testimony was
a harmless error. He does so by focusing on the NHSC’s
reference to testimony from the emergency-room nurse, and
arguing that the nurse’s testimony was also inadmissible
hearsay. He concludes: “[T]he improper admission of both
Busch’s and [the nurse’s] testimony affected the fundamental
fairness of the trial below in violation of [his] right to a
fair trial.” Pet’r’s Mem. of Law (Doc. No. 16) 27.
Even if the nurse’s testimony was admitted in violation of
the New Hampshire Rules of Evidence – a claim that Fischer seems
never to have presented to the NHSC, and a matter on which this
court offers no opinion – the court cannot say that the
admission of both Busch’s testimony and the nurse’s testimony
made a fair trial impossible, which is the applicable legal
standard. See Lyons, 666 F.3d at 56. That is, given all the
other evidence against Fischer, any prejudice that may have
resulted from the admission of the evidence at issue was
minimal, at best. Accordingly, petitioner has not established a
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26
violation of his right to due process based upon the evidentiary
ruling(s) on which Claim Four is based. Accordingly, Claim Four
fails.
V. Claim Five
Petitioner’s fifth claim is that the trial court violated
his rights under the Fifth, Sixth, and Fourteenth Amendments by
preventing defense counsel from eliciting testimony concerning
Tracy’s medications and their side effects. Fischer’s notice of
appeal made no mention of such testimony, and in his pro se
supplemental brief, he addressed this issue as a matter of New
Hampshire evidentiary law.
Respondent argues that it is entitled to judgment as a
matter of law on Claim Five because: (1) Fischer waived it in
the state courts; (2) the claim involves only a matter of state
law; (3) the claim is unexhausted; and (4) the claim fails on
the merits. The absence of the issue underlying Claim Five from
Fischer’s notice of appeal would likely support an argument that
Claim Five was procedurally defaulted. See Pike v. Guarino, 492
F.3d 61, 73 (1st Cir. 2007) (explaining that “a claim is
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”); Dupont v. N.H. Real Estate Comm’n,
157 N.H. 658, 662 (2008) (explaining that issues not raised in
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notice of appeal are “not properly preserved and are deemed
waived”) (citing State v. Martin, 145 N.H. 313, 315 (2000)).
While respondent argues in passing that petitioner waived the
issue underling Claim Five on direct appeal, it does not invoke
the doctrine of procedural default and invites the court to
review Claim Five de novo. The court accepts that invitation.
See Barbosa v. Mitchell, 812 F.3d 62, 68 (1st Cir. 2016) (“We
will therefore accept the State’s invitation to ignore Barbosa’s
own default, and consider the merits of his belated challenge to
the admission of Delatore’s results table and Lynch’s recitation
of Delatore’s findings.”).
Claim Five arises from a ruling made at sidebar during
defense counsel’s cross-examination of Tracy, after the State
objected to the following question: “Now, you’re on certain
medication, aren’t you?” Trial Tr. (Dec. 7, 2010) 72:18. In
response to the State’s objection, defense counsel explained
that “the medication she’s on has a tendency to thin the blood
and . . . make a person susceptible to bruising.” Id. 72:24 -
73:1. Defense counsel went on to indicate that he intended to
get into the side effects of Tracy’s medication through a doctor
that the State was going to call. Judge Brown ruled:
I don’t understand how you can get into the effects of
the medications vis-à-vis bleeding and bruising
without an expert, and without a notice of that issue
at all . . . unless the door is opened . . . . I’m
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28
not going to allow you to . . .
. . . .
For the record, if you want to find out, you can ask
her what medications she’s on; that’s fine, . . . but
you’re not going to be asking her [about] the effects
of that –
. . . .
You may ask what she’s on for her rheumatoid
arthritis.
Id. 74:11 – 75:6 (emphasis added). While defense counsel asked
Tracy whether she took medication for her rheumatoid arthritis,
he did not ask her to identify the medication she was taking.
Consequently, he never asked the doctor the State called about
the side effects of Tracy’s medications.
Based upon the foregoing, petitioner mounts the following
argument:
Trial counsel attempted to elicit testimony from
Tracy about medications she regularly took to
establish a foundation for admission of evidence that
said medications, Humira and Methotrexate, have the
side-effects of “bruising easily” (Humira) and
“unusual bleeding or bruising” (Methotrexate).
. . . [A] reasonable, alternative explanation for
the bruises Tracy clamed [i.e., her medications] . . .
was highly relevant and probative of her credibility
and to the question of whether she suffered the
injuries alleged in the indictments.
Ultimately, the lower court ruled that trial
counsel could not question Tracy about her
medications, or the side-effects thereof, without an
expert witness. This was error.
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29
Pet’r’s Mem. of Law (Doc. No. 16) 27 (citations to the record
omitted). Petitioner goes on to argue that, under New
Hampshire’s rules of evidence, information about the side
effects of Tracy’s medications was admissible, in the form of
drug information sheets or entries from the Physician’s Desk
Reference (“PDR”). According to petitioner:
Both the drug information sheets and the PDR
should have been admissible under Rule 803(17) and
trial counsel should have been allowed to lay the
foundation for this evidence by questioning Tracy as
to the medications she regularly took, but was
prevented by the trial court from doing either.
Had trial counsel not been improperly precluded
from laying the foundation for admission of the
medications Tracy regularly took the drug information
sheets and the PDR would also have been admissible
under N.H. R. Ev. 803(18).
Id. at 28.
As the court has previously explained, evidentiary rulings
by a state trial court are not generally subject to habeas
review. See Parkhurst, 2011 WL 5330781, at *9. That said,
Claim Five fails for an antecedent reason: defense counsel was
not prevented from asking Tracy what medications she took. To
the contrary, Judge Brown expressly ruled that counsel could ask
Tracy what she was taking for her rheumatoid arthritis.
Counsel, however, did not make that inquiry. As a result,
counsel had no occasion to ask any other witness about the side
effects of Tracy’s medications. Moreover, while petitioner now
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30
argues that both drug information sheets and the PDR are
admissible under the New Hampshire Rules of Evidence, that
provides no basis for a claim of error by the trial court,
because defense counsel never even attempted to introduce either
form of evidence into the record. In short, because of its
faulty factual premise, Claim Five is entirely unavailing.
VI. Claim Six
Petitioner’s sixth claim is that the trial court violated
his rights under the Fifth and Fourteenth Amendments by
declining to find that the trial evidence was insufficient to
establish, beyond a reasonable doubt, the element of “bodily
injury,” where he was indicted for causing contusions and muscle
strains but the State only introduced evidence of one contusion.
In his notice of appeal, Fischer challenged the sufficiency of
the State’s evidence on two of the three elements of second
degree assault, but not the issue of bodily injury. In his pro
se supplemental brief he raised the issue, but as a matter of
New Hampshire law.
Respondent argues that it is entitled to judgment as a
matter of law on Claim Six because: (1) Fischer waived it in the
state courts; (2) the claim involves only a matter of state law;
(3) the claim is unexhausted; and (4) the claim fails on the
merits. As with Claim Five, there is an argument to be made
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31
that Claim Six has been procedurally defaulted, but respondent
makes no such an argument and invites the court to review Claim
Six de novo. Again, the court accepts respondent’s invitation.
As construed by this court in its order on preliminary
review, the gravamen of Claim Six is that the trial court erred
by ruling that the State had introduced sufficient evidence for
a reasonable jury to find, beyond a reasonable doubt, that
Fischer had inflicted contusions and muscle strains on Tracy.
In petitioner’s memorandum of law, which mirrors the pro se
supplemental brief he filed in the NHSC, Claim Six is somewhat
broader, and asserts that the trial court erred by determining
that: (1) bruising and muscle strain qualify as bodily injury in
the first instance; and (2) the State had introduced sufficient
evidence for a reasonable jury to find, beyond a reasonable
doubt, that Fischer had caused contusions (and muscle strains)
to Tracy’s head and neck. Even giving petitioner the benefit of
this broader construction of Claim Six, the claim fails.
The first part of Claim Six incorporates a challenge to
Judge Brown’s instruction that “bodily injury is any harm,
however slight, to the body of another person.” Trial Tr. (Dec.
8, 2010) 161:13-14. According to petitioner, “[t]here is no
State statutory law that substantiates this definition and this
definition is contrary to the court’s case law.” Pet’r’s Mem.
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of Law (Doc. No. 16) 32 (citing In re Juvenile 2002-209, 149
N.H. 559, 564 (2003)). In petitioner’s view, the injuries
charged in the indictment do not, as a matter of law, qualify as
“bodily injury” for the purposes of RSA 631:2, I(c), under a
proper definition of “bodily injury.”
The jury-instruction component of Claim Six fails because
it posits an error of state law, but does not rest upon a
purported error of constitutional dimension such as shifting the
burden of proof away from the prosecution or lowering the burden
to proof to something less than beyond a reasonable doubt. See
Cupp, 414 U.S. at 147-48. That compels the court to reject the
first part of Claim Six.9
The second part of Claim Six is a challenge to the
sufficiency of the evidence supporting petitioner’s convictions.
As Judge DiClerico has recently explained
When a [§ 2254] petitioner challenges the sufficiency
9 Beyond that, petitioner does not appear to offer any basis
for a determination that the instruction he challenges runs
afoul of state law. All of the NHSC opinions upon which he
relies for the definition of “bodily injury” he says the trial
judge should have given are from cases interpreting RSA 169-C:3,
II(d), which is part of the definition section of the New
Hampshire Child Protection Act. See In re Juvenile 2002-209,
149 N.H. at 563-64; In re Ethan H., 135 N.H. 681, 683 (1992); In
re Doe, 132 N.H. 270, 277 (1989)). But petitioner offers no
authority for the proposition that the trial judge should have
based his instruction on the “bodily injury” element of second
degree assault on judicial constructions of the physical injury
component of the Child Protection Act’s definition of “abused
child.”
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33
of the evidence to support his conviction, “the
relevant question is whether, after viewing the
evidence in the light most favorable to the
prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a
reasonable doubt.”
McGrath v. Warden, N.H. State Prison, No. 14-cv-353-JD, 2016 WL
3945159, at *8 (D.N.H. July 19, 2016) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)) (emphasis in Jackson).
Petitioner claims that the trial court erred by ruling that
“the State presented sufficient evidence of ‘contusions,’
bruises or black-and-blue marks to Tracy’s ‘head and neck.’”
Pet’r’s Mem. of Law (Doc. No. 16) 32 (emphasis in the original).
More specifically, he claims that while the State introduced
evidence of one bruise on Tracy’s back, it did not introduce
evidence of multiple contusions to Tracy’s head and neck, as
charged in the indictment. At trial, a nurse practitioner who
examined Tracy later in the day of the door-slamming incident
testified that he diagnosed Tracy with, among other things,
“abrasions and contusions of her neck and back, and her head as
well.” Trial Tr. (Dec. 8, 2010) 79:13-14. That, obviously, is
evidence that Tracy had suffered the injuries charged in the
indictment. To be sure, defense counsel cross-examined the
nurse practitioner regarding what he saw when he examined
Tracy’s head and neck, but the fact remains that he testified
that Tracy “had some . . . abrasions and contusions of her neck
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34
and back, and her head as well.” Id. 79:12-14. That is not
all. The jury heard testimony from Tracy that Fischer: (1)
“grabbed her by the throat,” Fischer I, 165 N.H. at 709; (2)
“pushed her head into [a] wall . . . with such force that it
dented the wall,” id.; (3) “stepped on her head,” id.; and (4)
“grabbed her by the hair and sweatshirt and dragged her into the
living room” with such force that “[t]he sweatshirt tightened
around her neck so she could not breath or speak,” id. Tracy’s
testimony is circumstantial evidence from which a reasonable
jury could have found that as a result of Fischer’s actions, she
suffered contusions and muscle strain to her head and neck.
Had there been no evidence of abrasions and contusions to
Tracy’s head and neck then, perhaps, the second part of Claim
Six might have merit. But in light of the testimony from both
the nurse practitioner and Tracy herself, a rational trier of
facts could have found that the State proved the specific
injuries alleged in the indictment. Accordingly, like the first
part of Claim Six, the second part of that claim fails.
VII. Claim Seven
Petitioner’s seventh claim is that the evidence and jury
instructions constructively amended his indictments, in
violation of his rights under the Fifth, Sixth, and Fourteenth
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Amendments.10 Specifically, petitioner claims that while he was
indicted for causing contusions and muscle strains to Tracy’s
head and neck, the State only introduced evidence of a single
bruise to Tracy’s back, and thus
the jury was allowed to consider a single bruise to
Tracy’s back in determining whether [he] was guilty of
the charges alleging that he caused “contusions” to
Tracy’s “head and neck,” [which] impermissibly,
constructively amended the indictment and allowed the
jury to convict [him] for causing a form of bodily
injury not alleged in the indictment.
Pet’r’s Mem. of Law (Doc. No. 16) 43.11 Respondent argues that
it is entitled to judgment as a matter of law on Claim Seven
because: (1) Fischer waived it in the state courts; (2) the
claim involves only a matter of state law; and (3) the claim is
unexhausted.
10 The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
informed of the nature and cause of the accusation [against
him.”
11 Petitioner also states Claim Seven in a slightly
different way:
[T]he State’s closing argument and the court’s jury
instructions did not limit the jury to considering
only evidence of the injuries charged in the
indictment, i.e. “contusions and muscle strain in
[Tracy’s] head and neck.” Rather, both the State’s
[closing] argument and the court’s [jury] instructions
impermissibly expanded the indictment by allowing the
jury to consider evidence of a single bruise to
Tracy’s back that was not charged in the indictment.
Pet’r’s Mem. of Law (Doc. No. 16) 43.
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36
Claim Seven fails for the same reason as Claim Six.
Because the State introduced both direct and circumstantial
evidence of contusions to Tracy’s head and neck, it is not
accurate to say that the trial court allowed the jury to base
Fischer’s convictions upon evidence of injuries that were not
charged in the indictment. Moreover, petitioner does not argue
that the trial court’s admission of evidence of an injury not
mentioned in the indictment, i.e., the bruise on Tracy’s back,
so infused the trial with inflammatory prejudice that a fair
trial was impossible. See Lyons, 666 F.3d at 56. In sum, Claim
Seven fails.
VIII. Claim Eight
Petitioner’s eighth claim is that the trial court violated
his rights under the Fifth, Sixth, and Fourteenth Amendments by
failing to inquire as to the potential taint of witness
testimony caused by violations of the court’s sequestration
order, after defense counsel brought those violations to the
court’s attention. Fischer raised this issue in his notice of
appeal, and while his appellate counsel did not brief it, he
included it in his pro se supplemental brief.
Respondent argues that it is entitled to judgment as a
matter of law on Claim Eight because: (1) Fischer waived it in
the state courts; (2) the claim involves only a matter of state
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37
law; and (3) the claim fails on the merits. As with several of
petitioner’s other claims, the court proceeds directly to the
merits, and reviews Claim Eight de novo.
Claim Eight arises from the following events. On the first
day of trial, the State made “a formal motion to sequester the
witnesses.” Trial Tr. (Dec. 7, 2010) 6:1-2. Defense counsel
did not object. Judge Brown granted the motion, but when he did
so, there were no witnesses in the courtroom, because the
prosecutor had already instructed them about the sequestration
order she anticipated the court would issue. On the first day
of trial, the State called three witnesses: Tracy, Busch, and
Pamela Damrill. Petitioner does not claim that any witness
heard the testimony of any other witness. However, after each
witness testified, the judge excused her without mentioning his
sequestration order.
At the start of the second day of trial, the following
exchange took place among defense counsel (Mr. White), the
prosecutor (Ms. Flynn), and Judge Brown:
MR. WHITE: . . . It has been reported to me
that when one witness finished [testifying on the
previous day] . . . they went out and had a discussion
about what questions were asked. Answers weren’t
overheard, but one of the other State’s witnesses
overheard them begin conversations about the questions
that were asked and stuff, and then the door was shut.
So I think that’s a violation of the request by
the State for sequestration and –
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MS. FLYNN: Your Honor –
MR. WHITE: – should be inquired into.
MS. FLYNN: – this is the first I’m hearing of
this. I –
THE COURT: You’re going to have to do –
MS. FLYNN: It was brought to my attention
yesterday –
THE COURT: – something more formal than that on
it. I mean this is secondhand, third. I want –
you’re going to have to have witnesses and things like
that, and it’s going to have to – it’s going to have
to be of some – I want you to find – of substantive
nature. I’m not going to be –
MR WHITE: The witness is here.
THE COURT: – and if the State’s – if the State
has no hand in it, I’m not so sure that there’s any
violation. But I want – I need to know more. We’ll
take it up later.
MR. WHITE: Fine, Your Honor. But the witness is
here, so – it’s a State’s witness that is mentioning
that.
. . . .
THE COURT: Attorney Flynn, just make sure that
you instruct the witnesses that they can’t speak with
one another on the way out.
Trial Tr. (Dec. 8, 2010) 13:9 – 14:16. Notwithstanding Judge
Brown’s suggestion that he do so, defense counsel did not raise
the issue again.
In his memorandum of law, petitioner asserts that “the
trial judge refused to inquire into what impact the possible
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39
collaboration and relaying of information by the State’s
witnesses about testimony and questions asked had on the trial,”
Pet’r’s Mem. of Law (Doc. No. 16) 47, and on that basis, he
claims that his “rights under the 5th, 6th and 14th Amendments
were violated where the trial court failed to further inquire
into allegations that sequestered witnesses had been comparing
testimony after each testified,” id. at 46. Petitioner’s claim
rests on a premise that is flatly unsupported by the trial
record. The trial judge did not refuse to inquire into the
possible violation of his sequestration order by witnesses for
the State. Rather, he indicated his willingness to consider the
issue in response to a more formal request from defense counsel.
Defense counsel made no such request. Petitioner identifies no
legal authority for the proposition that the trial judge was
required to do anything more than he did, and the court is aware
of none. Accordingly, Claim Eight fails.
IX. Claim Nine
Petitioner’s ninth claim is that the trial court violated
his Fifth and Fourteenth Amendment right not to be subjected to
double jeopardy by sentencing him on two second degree assault
convictions, where the indictments underlying each conviction
alleged identical injuries. Respondent argues that this claim
fails on the merits.
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The NHSC addressed this issue in its decision on Fischer’s
direct appeal. See Fischer I, 165 N.H. at 715. Accordingly, it
is subject to deferential review. See 28 U.S.C. §2254(d);
Harrington, 562 U.S. at 100.
Turning to the substantive law on which Claim Nine is
based, “[t]he Double Jeopardy Clause of the Fifth Amendment
states that no person can ‘be subject for the same offense to be
twice put in jeopardy of life or limb.’” United States v. Soto,
799 F.3d 68, 86 (1st Cir. 2015) (quoting U.S. Const. amend. V;
citing United States v. Felix, 503 U.S. 378, 385 (1992)). As
the U.S. Supreme Court explained in Felix, “[a]t its root, the
Double Jeopardy Clause forbids the duplicative prosecution of a
defendant for the ‘same offence.’” 503 U.S. at 385.
Petitioner’s theory is that because the indictments underlying
his two convictions both recited the same injuries, i.e.,
“contusions and muscle strain to [Tracy’s] head and neck,” those
indictments charged him with only one assault rather than two,
notwithstanding their recitation of different acts by petitioner
that occurred in different locations.
The NHSC disposed of Fischer’s double-jeopardy argument
this way:
[T]he defendant was charged with two separate
incidents of assault — the first took place in the
living room and, sometime thereafter, the second
occurred in the kitchen. That each assault resulted
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in injuries to the victim’s head and neck does not
establish that they arose out of the same act or
transaction. We therefore conclude that the defendant
was not subjected to multiple punishments for the same
offense and, consequently, that his right against
double jeopardy under the State Constitution was not
infringed. The Federal Constitution provides no
greater protection than the State Constitution in this
area.
Fischer I, 165 N.H. at 715. In its opinion, the NHSC relied
upon the Supreme Court’s seminal double-jeopardy decision in
Blockburger v. United States, 284 U.S. 299 (1932).
Claim Nine fails because petitioner has not established
that the NHSC’s decision was contrary to or an unreasonable
application of Blockburger or any other Supreme Court double-
jeopardy decision. Indeed, petitioner’s memorandum of law does
not even cite Blockburger. Moreover, Fischer’s conviction for
two separate assaults is entirely consistent with Blockburger,
in which the Supreme Court rejected a criminal defendant’s claim
that
two sales [of morphine hydrochloride], having been
made to the same purchaser and following each other,
with no substantial interval of time between the
delivery of the drug in the first transaction and the
payment for the second quantity sold, constitute a
single continuing offense.
284 U.S. at 301-02. According to the Court, “the first sale had
been consummated, and the payment for the additional drug,
however closely following, was the initiation of a separate and
distinct sale.” Id. at 301. Here, the two assaults for which
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Fischer was convicted were separated from each other by the
following events and the amount of time it took for them to
unfold: (1) Fischer left the house, see Fischer I, 165 N.H. at
709; (2) he returned to the house, see id.; (3) Tracy engaged
him in a conversation, see id.; (4) he turned off the kitchen
lights and went upstairs, see id.; (5) Tracy turned the kitchen
lights back on, see id.; and (6) Fischer came back downstairs
and turned the lights off, see id. Under Blockburger, that is
more than sufficient to establish two separate and distinct
assaults rather than a single continuing offense.
The only Supreme Court decision that petitioner cites in
support of Claim Nine is United States v. Universal C.I.T.
Credit Corp., 344 U.S. 218 (1952). In that case, the Court was
faced with a situation in which an employer was alleged to have
committed multiple violations of three different provisions of
the Fair Labor Standards Act (“FLSA”), and was charged with a
total of thirty-two separate violations, one for each week
during which it failed to pay the minimum wage (six counts), pay
overtime (twenty counts), or maintain proper records (six
counts). See id. at 219-20. The trial court “[r]eject[ed] a
reading of [§] 15 [of the FLSA] whereby the prosecutor could
treat as a separate offense each breach of the statutory duty
owed to a single employee during any single workweek . . . [and]
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granted defendant’s motion to dismiss all but three counts of
the information.” Id. at 220. The Supreme Court affirmed.12
After considering the legislative history of the FLSA, the Court
held that “[t]he offense made punishable under the Fair Labor
Standards Act is a course of conduct,” id. at 224, and “that the
district judge correctly held that a single course of conduct
does not constitute more than one offense under [§] 15 of the
Fair Labor Standards Act,” id. at 226. This court has no
difficulty concluding that the NHSC’s decision on petitioner’s
double-jeopardy claim was neither contrary to nor an
unreasonable application of the Supreme Court’s construction of
the FLSA in Universal. Accordingly, Claim Nine fails.
X. Claim Ten
Petitioner’s tenth claim is that the statute under which
the trial court imposed extended terms of imprisonment, RSA
651:6, II(a), violates the Fifth and Fourteenth Amendments
because it fails to provide notice to a criminal defendant
concerning the circumstances that could expose him to an
extended term. Respondent argues that this claim fails on the
merits.
12 In Universal, the Supreme Court affirmed the trial court,
rather than an appellate court, because “the Government brought
the case [from the district court to the Supreme Court] under
the Criminal Appeals Act,” 344 U.S. at 221 (citing 34 Stat.
1246, 18 U.S.C. § 3731).
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The NHSC addressed this issue in its decision on Fischer’s
direct appeal. See 165 N.H. at 715-17. Thus, it is subject to
deferential review. See 28 U.S.C. § 2245(d); Harrington, 562
U.S. at 100.
The governing legal principal is that a “punishment fails
to comply with due process if the statute . . . under which it
is obtained . . . is so standardless that it authorizes or
encourages seriously discriminatory enforcement.” Fox
Television, 132 S. Ct. at 2317 (quoting Williams, 533 U.S. at
304).13 The Supreme Court has set a high bar for
unconstitutional vagueness, and petitioner has not cleared it.
The statute under which petitioner was sentenced to an
extended term of imprisonment provides that such a sentence may
be imposed if the trial court finds that a defendant “[h]as
twice previously been convicted . . . on sentences in excess of
one year.” RSA 651:6, II(a). Plainly, a defendant is not
convicted on a sentence, which makes RSA 651:6, II(a)
nonsensical. The NHSC recognized as much in State v. Dansereau,
in which it: (1) agreed “that, on its face, RSA 651:6, II(a) is
13 Due process also bars convictions based upon statues that
“fail[ ] to provide a person of ordinary intelligence fair
notice of what [conduct] is prohibited.” Fox Television, 132 S.
Ct. at 2317 (citation omitted). But the issue in Claim Ten is
the validity of petitioner’s sentence, not the validity of his
convictions.
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ambiguous,” 157 N.H. 596, 599 (2008); (2) determined that “the
legislative history [of RSA 651:6, II(a)] supports a conclusion
that the phrase ‘convicted on sentences in excess of one year’
does not include the defendant’s suspended sentences,” id. at
315 (citation omitted); and (3) applied the rule of lenity to
determine that it was unlawful for the trial court to impose an
extended term when one of the predicate convictions resulted in
a suspended sentence rather than imprisonment, see id. Here,
however, petitioner is not claiming that the trial court’s
imposition of an extended term was unconstitutional because one
of his predicate convictions resulted in a suspended sentence.
Rather, petitioner’s claim is that the imposition of an
extended term was unconstitutional because his two predicate
convictions resulted in sentences he served concurrently, rather
that consecutively with a break in between. The NHSC rejected
that argument. See Fischer I, 165 N.H. at 716-17. In his
memorandum of law, petitioner’s argument on Claim Ten is all but
a word-for-word replication of the argument he made in his pro
se supplemental brief to the NHSC. Because petitioner does not
even address the NHSC’s decision, or indicate how RSA 651:6,
II(a) is “so standardless that it authorizes or encourages
seriously discriminatory enforcement,” Fox Television, 132 S.
Ct. at 2317, he necessarily fails to identify any way in which
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that decision was contrary to or a misapplication of federal
law. Thus, Claim Ten fails.
XI. Claim Eleven
Petitioner’s eleventh claim is that his trial counsel
provided him with ineffective assistance, in fourteen different
ways, in violation of his rights under the Fifth, Sixth, and
Fourteenth Amendments.14 After describing the applicable legal
standard, the court turns to each of petitioner’s claims of
error, which are denominated in accordance with the numbering
used in the order on preliminary review.
A. The Legal Standard
The court of appeals for this circuit has recently outlined
the relevant legal principles:
Ineffective-assistance claims are governed by the
Supreme Court’s decision in Strickland v. Washington,
466 U.S. 668 (1984), under which the defendant must
prove two elements. First, the defendant must show
that counsel’s performance was deficient, which
requires showing that counsel’s performance was not
only substandard, but also deficient in some way
sufficiently substantial to deny him effective
representation. Second, the defendant must show that
the deficient performance prejudiced the defense,
which requires proof that there is a reasonable
probability that, but for counsel’s unprofessional
14 The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence,” and “the ‘essential
aim’ of the Sixth Amendment ‘is to guarantee an effective
advocate for each criminal defendant,’” United States v.
Laureano-Pérez, 797 F.3d 45, 55 (1st Cir. 2015) (quoting Wheat
v. United States, 486 U.S. 153, 159 (1988)).
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errors, the result of the proceeding would have been
different.
Jaynes, 824 F.3d at 196 (quoting Logan, 790 F.3d at 71)
(parallel citations omitted). The court continued:
“[W]hen a federal court reviews an ineffective
assistance of counsel claim under § 2254, it must use
a doubly deferential standard of review that gives
both the state court and the defense attorney the
benefit of the doubt. This is an extremely difficult
standard to meet . . . .” Pena v. Dickhaut, 736 F.3d
600, 606 (1st Cir. 2013) (citations and internal
quotation marks omitted). “[T]he pivotal question in
a federal collateral attack under Strickland is not
whether defense counsel’s performance fell below
Strickland’s standard, but whether the state court’s
application of the Strickland standard was
unreasonable, that is, whether fairminded jurists
would all agree that the decision was unreasonable.”
Jewett v. Brady, 634 F.3d 67, 75 (1st Cir. 2011)
(citations and internal quotation marks omitted).
Id.; see also Teti v. Bender, 507 F.3d 50, 57 (1st Cir. 2007)
(explaining that “an ineffective assistance of counsel claim is
a mixed question of law and fact” reviewed under the
unreasonable application provision of § 2254(d)(1)) (citing
Strickland, 466 U.S. at 698; Taylor, 529 U.S. at 409; Scarpa v.
DuBois, 38 F.3d 1, 9 (1st Cir. 1994)).
1. Claim 11(a)
In its order on preliminary review, this court
characterized Claim 11(a) as asserting that “[t]rial counsel
provided Fischer with ineffective assistance . . . by . . .
failing to ensure that the jury was properly instructed
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regarding the ‘recklessness’ and ‘extreme indifference to the
value of human life’ elements of second degree assault.” To the
extent that Claim 11(a) holds defense counsel liable for the
actions of the trial court, it necessarily fails. The proper
focus of an ineffective-assistance claim is what counsel did or
did not do, not what the trial court did or did not do in
response to counsel’s actions. In other words, counsel may
perform ineffectively by failing to object to an erroneous jury
instruction, but if the court gives such an instruction over
counsel’s objection, the remedy for that is not a claim of
ineffective assistance.15 That said, the problem with Claim
15 In his memorandum of law, petitioner makes the following
argument:
Either attorney White failed to timely object to
the court’s jury instructions or he failed to more
strenuously argue that the jury needed to be informed
of the definition of “extreme indifference to the
value of human life” and that the court’s instruction
on the definition of “reckless” gave the jury the
incorrect standard . . . . In either event, Attorney
White’s representation did not rise to [the]
constitutionally required level of effective
assistance.
Pet’r’s Mem. of Law (Doc. No. 16) 58. He supports that argument
with citations to two cases that stand for the proposition that
failure to object to improper jury instructions can be
ineffective assistance, but he cites no case, and the court is
aware of none, in which trial counsel has been deemed
constitutionally ineffective for failing to argue strenuously
enough, after raising an issue sufficiently to preserve it for
appellate review.
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11(a) is that defense counsel did object to the trial court’s
jury instructions on second degree assault. See Trial Tr. (Dec.
8, 2010) 97:1 – 98:23. Judge Wageling noted as much in her
order denying Fischer’s motion for a new trial, in which she
wrote:
Attorney White did object to the jury instructions
specifically for this reason [i.e., their purported
failure to properly define the difference between
ordinary “recklessness” and “extreme indifference to
the value of human life”] and [did so] on the record.
His objection was made prior to the Court giving the
standard instructions. Thus, Attorney White’s conduct
was constitutionally effective.
State v. Fischer (Fischer II), No. 219-2010-CR-00127, slip op.
at 14 (N.H. Super. Ct., Strafford Cty. Mar. 21, 2012) (emphasis
in the original). Petitioner does not argue that Judge
Wageling’s decision rested on an unreasonable application of
Strickland, and it did not. Accordingly, Claim 11(a) fails.
2. Claims 11(b) & (d)
Petitioner believes that his defense would have been
strengthened by evidence that at the time of the events giving
rise to his convictions, Tracy was taking medication that had
the side effect of increasing her susceptibility to bruising.
On that basis, he claims that his trial counsel provided
ineffective assistance by failing to: (1) properly argue for the
admissibility of testimony from Tracy concerning the medication
she was taking and its side effects (Claim 11(b)); and (2)
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adequately argue that expert testimony was not needed for the
admission of evidence regarding the “easy bruising” side effect
of Tracy’s medication, pursuant to the hearsay except in Rule
803(17) of the New Hampshire Rules of Evidence (Claim 11(b)).
The issues that petitioner raises in Claims 11(b) and (d)
were never brought before the superior court. See Resp’t’s Mem.
of Law (Doc. No. 12-1) 6-7 (listing issues raised in Fischer’s
motion for a new trial and his state habeas petition, which do
not include those underlying Claims 11(b) and (d));16 Pet’r’s
Mem. of Law (Doc. No. 16) 6 (“The petitioner agrees that the
procedural history recited by the respondent in its Motion for
Summary Judgment is accurate.”). That, in turn, explains why
petitioner’s memorandum of law says nothing about Claims 11(b)
and (d). By virtue of his silence, petitioner necessarily has
failed to show, with regard to the issue underlying Claims 11(b)
and (d), that his counsel performed deficiently, that he was
prejudiced by counsel’s performance, or that any state court
unreasonably applied Strickland. Thus, Claims 11(b) and (d)
fail.
16 Respondent’s memorandum of law later states that Fischer
raised the issues underlying Claims 11(b) and (d) in his motion
for a new trial, see Doc. No. 12-1, at 31, but that appears to
be a misstatement, as the memorandum goes on to discuss defense
counsel’s decision not to hire an expert, which is the issue
underlying Claim 11(c)(iii).
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3. Claim 11(c)(i)
Petitioner claims that his trial counsel provided
ineffective assistance by failing to interview Tracy’s ex-
husband concerning her prior rage problems and abusiveness. In
her order on Fischer’s motion for a new trial, Judge Wageling
ruled that “Attorney White’s decision[ ] to forego interviewing
certain witnesses . . . to show [Tracy’s] history for
abusiveness [was] objectively reasonable” in light of the
State’s decision “not [to] introduce testimony from its domestic
violence expert,” and Attorney White’s understanding that the
only purpose of testimony from Tracy’s ex husband would be “to
rebut that expert’s testimony.” Fischer II, slip op. at 4-5.
Respondent argues that Judge Wageling’s ruling is entitled to
deference.
Petitioner’s memorandum of law offers nothing more than a
verbatim recitation of the argument he made in his motion for a
new trial. Necessarily, he does not argue, much less
demonstrate, that Judge Wageling’s application of Strickland was
unreasonable. Thus, Claim 11(c)(i) fails.
4. Claim 11(c)(ii)
Petitioner claims that his trial counsel provided
ineffective assistance by failing to obtain Tracy’s mental
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52
health records related to her rage problems and abusiveness.17
In her order on Fischer’s motion for a new trial, Judge Wageling
ruled that “Attorney White’s decision[ ] to forego . . .
seek[ing] admission of Tracy’s mental health records to show her
history for abusiveness [was] objectively reasonable” in light
of the State’s decision “not [to] introduce testimony from its
domestic violence expert,” and Attorney White’s understanding
that the only purpose of admitting Tracy’s mental health records
would be “to rebut that expert’s testimony.” Fischer II, slip
op. at 4-5. Respondent argues that Judge Wageling’s ruling is
entitled to deference.
Petitioner’s memorandum of law consists of a verbatim
recitation of the argument he made in his motion for a new trial
plus this:
The Respondent argues that because the decision
not to seek [Tracy’s mental health] records was
allegedly made after the State decided it would not
introduce expert testimony it is dispositive of the
issue. This argument pre-supposes that such evidence
would only be admissible if the State introduced such
17 The court notes that while Claim 11(c)(ii) pertains to
Tracy’s “mental health records,” petitioner’s memorandum of law
does not indicate what those records might be, other than to
assert, on “reason and belief,” that “Tracy Fischer has had
life-long mental health issues and has participated in marriage
counseling with her 3rd husband,” Pet’r’s Mem. of Law (Doc. No.
16) 59. Thus, petitioner’s claim is not so much that his
counsel performed deficiently by deciding not to seek some
specific mental health record but, rather, that counsel’s
shortcoming was declining to go on a fishing expedition for
whatever mental health records might be available.
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evidence. As shown above, it is the petitioner’s
position that such evidence was admissible and
exculpatory regardless of the State’s strategic
decisions.
Pet’r’s Mem. of Law (Doc. No. 16) 61. According to petitioner,
Tracy’s mental health records were admissible for impeachment
purpose and because she had
demonstrated a pattern [of] irrational rage, displayed
through hostile, aggressive and assaultive behavior,
throughout her marriage to [him] and was acting in
conformity with this character trait on the evening of
the incident that led to the charges [at] issue.
Id. at 59.
Even if there are, somewhere, mental health records
relating to Tracy’s purported “rage problems and abusiveness,”
which petitioner has not actually demonstrated, and even if any
such records might have been used in the ways that petitioner
describes in his memorandum of law, that does not demonstrate
that his counsel performed in a constitutionally ineffective
manner by failing to obtain those records. Assuming that
defense counsel’s failure to obtain Tracy’s mental health
records was sufficiently deficient to satisfy the first prong of
Strickland, petitioner has failed to show that there is a
reasonable probability that he would have been acquitted if his
counsel had obtained, and used at trial, the records at issue.
Moreover, at least one of the uses for Tracy’s mental health
record that petitioner proposes sounds rather like a “blame-the-
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victim” strategy, which is hardly a sure-fire winner. See,
e.g., Dansby v. Hobbs, 766 F.3d 809, 839 (8th Cir. 2014) (“It is
speculative whether a strategy focused on Brenda's ‘attachment
style,’ which could well be construed by a jury as an effort to
‘blame the victim,’ would have produced a different outcome.
This claim of ineffective assistance is not substantial.”).
Rather, such a strategy can be fraught with peril. See, e.g.,
Gutierrez v. Crews, Civ. No. 10-64-WOB-JGW, 2011 WL 6955488, at
*6 (E.D. Ky. Oct. 3, 2011) (“presenting the experts’ testimony
would have opened the door to the pitfalls previously discussed
(seeming to blame the victim . . .), which could have adversely
affected the jury’s attitude to the petitioner”). But, even if
trial counsel’s performance ran afoul of Strickland, which it
did not, petitioner has failed, by a wide margin, to show that
“fairminded jurists would all agree,” Jaynes, 824 F.3d at 196,
that Judge Wageling’s application of Strickland was
unreasonable. Accordingly, Claim 11(c)(ii) fails.
5. Claim 11(c)(iii)
Petitioner claims that his trial counsel provided
ineffective assistance by failing to obtain an expert witness to
testify that one side effect of Tracy’s medication was easy
bruising. As he asserts that claim in his memorandum of law:
[T]rial counsel . . . did not consult with a
pharmaceutical or medical expert that would have
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55
enabled him to present expert testimony that Tracy’s
medications have the side-effects of “bruising easily”
(Humira) and “unusual bleeding or bruising”
(Methotrexate) and that it would have been medically
impossible for Tracy not to have suffered some
identifiable injury if [he] had acted in the manner
alleged.
Doc. No. 16, at 63.
In her order on Fischer’s motion for a new trial, Judge
Wageling determined that counsel’s decision not to call an
expert witness did not constitute ineffective assistance. In so
ruling, she noted defense counsel’s explanation for that
strategic decision: (1) the lack of bruising was good for
Fischer’s case, and he was able to establish that on cross-
examination without having to expend resources on an expert
witness; and (2) theoretical evidence on potential side effects
of Tracy’s medication would have added relatively little to
Fischer’s defense. In her order on Fischer’s motion for
reconsideration, Judge Wageling noted that at the hearing on his
motion for a new trial, Fischer “did not introduce any testimony
from an expert witness to demonstrate precisely what an expert
on the issue would have testified to at trial.” State v.
Fischer (Fischer III), 219-2010-CR-00127, slip op. at 8 (N.H.
Super. Ct., Strafford Cty. June 6, 2012).
In its motion for summary judgment, respondent contends
that it is entitled to judgment as a matter of law because: (1)
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the record Fischer placed before Judge Wageling did not entitle
him to the relief he sought; and (2) he is precluded from
further developing that record in this court.
Claim 11(c)(iii) fails because petitioner has not
established that: (1) his counsel’s decision not to call an
expert witness was deficient; (2) he was prejudiced by that
decision; or (3) Judge Wageling’s decision was an unreasonable
application of Strickland.
While petitioner has speculated as to what an expert might
have said at trial, speculation is all he has. As Judge
Wageling pointed out, petitioner “did not introduce any
testimony from an expert witness to demonstrate precisely what
an expert on the issue would have testified to at trial.”
Fischer III, slip op. at 8. That, in turn, distinguishes this
case from those on which petitioner relies for the proposition
that failure to call an expert witness constitutes ineffective
assistance of counsel. See Gersten v. Senkowski, 426 F.3d 588,
599-601 (2d Cir. 2005) (discussing affidavits from two doctors);
Pavel v. Hollins, 261 F.3d 210, 227-28 (2d Cir. 2001)
(discussing affidavit from doctor); Holsomback v. White, 133
F.3d 1382, 1388 (11th Cir. 1998) (discussing doctor’s testimony
at trial court evidentiary hearing). Without any evidence
concerning what an expert might have testified to, Judge
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57
Wageling was in no position to determine that defense counsel’s
decision not to introduce expert testimony was either deficient
or prejudicial to Fischer. Therefore, there is no basis for
this court to determine that Judge Wageling’s decision to reject
Fischer’s ineffective assistance claim was an unreasonable
application of Strickland. Accordingly, Claim 11(c)(iii) fails.
6. Claim 11(c)(iv)
Petitioner claims that his trial counsel provided
ineffective assistance by failing to obtain Tracy’s cell phone
records from the night of the incident, which would have
provided evidence that would have impeached her testimony.
In his motion for a new trial, Fischer noted that his trial
counsel failed to obtain Tracy’s telephone records because he
had missed a discovery deadline. Then he made the following
argument:
In her trial testimony, Tracy Fischer confirmed
her use of her cell phone, claiming that she had been
texting her friend “Kate” the evening of the incident
that gave rise to these charges. Upon reason and
belief, Tracy Fischer’s testimony was not truthful.
Rather, based on the newly discovered evidence that
Tracy Fischer was having an adulterous affair with one
Eric Bacon, the defendant takes the position that
Tracy Fischer was in fact “texting” Eric Bacon on the
evening in question. The defendant further submits
that Tracy Fischer’s telephone/text records can
substantiate this claim.
. . . .
Had Attorney White requested production of Tracy
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Fischer’s telephone records in a timely manner . . .
it could have been ascertained who she was in fact in
contact with and the actual dialogue of the text could
have been discovered. . . .
Attorney White’s failure to timely request
discovery of Tracy Fischer’s telephone/text records
utterly precluded any challenge to Tracy Fischer’s
credibility on this issue and constituted
unconstitutional ineffective assistance of counsel.
Mot. for New Trial at 4-5, State v. Fischer, No. 219-2010-CR-
00127 (N.H. Super. Ct., Strafford Cty.). Judge Wageling
disagreed:
Attorney White’s decision[ ] not to seek admission of
Tracy’s cell phone [and] text message . . . records
[was] also reasonable. . . . The defendant asserts
that Tracy’s cell phone . . . records would, among
other things, demonstrate that Tracy was having an
adulterous affair. Thus, he argues, the records would
demonstrate [that] Tracy lied under oath about whom
she was texting . . . . However, Attorney White
explained at the hearing that, at the outset, he chose
not to raise the issue of adultery at trial, making
the strategic decision that Tracy’s alleged infidelity
would provide a strong motive for Defendant’s charged
crimes. Moreover, Attorney White’s decision to omit
this evidence was made prior to Tracy’s testimony
regarding who she was texting. . . .
Fischer II, slip op. at 5. She went on to note that it was
unclear whether extrinsic such as Tracy’s phone records would
have been admissible to challenge her credibility.
In a motion for reconsideration, Fischer clarified that the
ineffective assistance he was claiming was not a strategic
decision regarding the admission of Tracy’s phone records but,
rather, his counsel’s failure to obtain those records in the
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first instance. He elaborated:
[T]he court misconstrues the defendant’s argument
regarding Attorney White’s failure to obtain and use
Tracy’s cell phone records. . . . What the defendant
has repeatedly argued, and . . . the State and the
court [have] thusfar chosen to ignore and/or
misconstrue is that he contends [that] Tracy’s
telephone records would have demonstrated that she was
texting someone other than her friend “Kate.” Had
[A]ttorney White properly investigated it would have
been discovered who exactly Tracy was texting. It is
immaterial to the defendant’s argument whether Tracy
was texting her paramour or someone else. What is
important is that she lied under oath about who she
was texting.
Def.’s Mot. for Recons. of Order Denying Def.’s Mot. for New
Trial at 3, State v. Fischer, No. 219-2010-CR-00127 (N.H. Super.
Ct., Strafford Cty.). In denying Fischer’s motion, Judge
Wageling: (1) reiterated the likely inadmissibility of Tracy’s
telephone records; (2) acknowledged that Fischer was challenging
defense counsel’s failure to obtain those records but declined
to “hold Attorney White to a standard that requires him to
predict the future and to know, in advance, the witnesses’
testimony,” Fischer III, slip op. at 4; and (3) noted that
Fischer had “not presented the Court with any evidence that
Tracy lied about her cell phone conversations,” id.
In this court, respondent’s memorandum of law does little
more than report what Judge Wageling had to say in her order
denying Fischer’s motion for a new trial. Petitioner’s
memorandum of law is largely a replication of his motion for a
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new trial, with two exceptions. He deleted three sentences
about Tracy’s purported affair and added this:
The respondent argues that the failure to seek
[Tracy’s phone records] was not ineffective because
defense counsel did not want to present evidence of
adultery. The petitioner is wholly unaware of where
the issue of adultery has its genesis because the
petitioner has always maintained that adultery was not
at issue in this case (although he did respond to the
issue in prior motions), but rather that it was “Kate”
who Tracy was speaking to and who needed to be
interviewed and that “Kate” would have provided
exculpatory testimony that during their late-night
telephone call Tracy had not told [Kate that] the
petitioner had assaulted her, or had not exaggerated
the degree of any assault as she would later do.
Pet’r’s Mem. of Law (Doc. No. 16) 62.
Claim 11(c)(iv) is, to put it charitably, a moving target.
Specifically, the court cannot even begin to understand how to
reconcile: (1) Fischer’s assertion in his motion for a new trial
that “the defendant takes the position that Tracy Fischer was in
fact ‘texting’ Eric Bacon on the evening in question,” (2) his
statement in his motion for reconsideration that “Tracy’s
telephone records would have demonstrated that she was texting
someone other than her friend ‘Kate,’” and (3) his subsequent
statement that “the petitioner has always maintained that . . .
it was ‘Kate’ who Tracy was speaking to,” Pet’r’s Mem. of Law
(Doc. No. 16) 62. Be that as it may, and notwithstanding the
convoluted history of the issue at the heart of Claim 11(c)(iv),
that claim fails for a simple, straightforward reason: Judge
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Wageling did not unreasonably apply Strickland when she ruled
that defense counsel’s handling of Tracy’s phone records did not
amount to ineffective assistance.
Even if defense counsel performed deficiently by failing to
obtain Tracy’s telephone records, which hardly seems likely,18
petitioner has not demonstrated prejudice because he has never
produced any evidence of what Tracy purportedly said to Kate (or
texted to Bacon). Without knowing what Tracy said (or texted),
it is impossible to say whether the outcome of petitioner’s
trial would have been different if defense counsel had obtained
Tracy’s phone records. Without any evidence from which a
Strickland violation could have been found, it necessarily the
case that Judge Wageling did not unreasonably apply Strickland
when she denied Fischer’s claim that defense counsel provided
ineffective assistance by failing to obtain Tracy’s telephone
records. Accordingly, Claim 11(c)(iv) fails.
18 Regarding the evidence that petitioner says defense
counsel ultimately should have obtained, i.e., testimony from
Kate about her conversation with Tracy, the court notes Judge
Wageling’s reasonable skepticism that the New Hampshire Rules of
Evidence would permit the use of extrinsic evidence to impeach a
witness’s credibility, and further observes that whether used
for impeachment or for some other purpose, testimony from Kate
concerning what Tracy said to her over the telephone would most
likely be hearsay. It is difficult to see how a failure to
obtain inadmissible evidence could qualify as ineffective
assistance.
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7. Claim 11(e)
Petitioner claims that his trial counsel provided
ineffective assistance by conceding his guilt during the trial
and in his closing argument. While petitioner offers no
citations to the record, it is apparent that Claim 11(e) arises
from the following statements made by defense counsel during his
closing argument:
I submit that once the Court has given you the
definition of simple assault, if you find that
physical contact was made, then that is an option.
. . . .
Okay. A scratch is some injury. An abrasion is
some injury. But there’s more to the definition of
second degree assault. That’s the extreme
indifference to human life. Did David grab [Tracy]
from behind? Yes. Physical contact. Unprivileged.
Simple assault.
Did David push [Tracy] back into the [couch] into
the wall? Physical contact. Touching, unprivileged.
Simple assault. Not second degree assault.
. . . .
Apply [your recollection of the facts] to the law as
the Judge will give it to you, and I submit when
you’re done with that the charges of second degree
assault, they’re not there. There may be something
there, but it’s not second degree assault.
Trial Tr. (Dec. 8, 2010) 128:12-14, 129:9-16, 131:21-24
(emphasis added).19
19 While petitioner claims that defense counsel conceded
guilt both during trial and in his closing argument, the lack of
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In rejecting Fischer’s claim that defense counsel provided
ineffective assistance by conceding his guilt, Judge Wageling:
(1) cited State v. Anaya, 134 N.H. 346, 353-54 (1991) (holding
that trial counsel provided ineffective assistance by conceding
guilt to lesser-included offense where defendant had refused to
plead guilty to that offense, testified at trial that he was
innocent of both charged offense and lesser-included offense,
and directed counsel to argue for total innocence); (2) cited
Reid v. Warden, 139 N.H. 530, 533 (1995) (holding that
concession of guilt to lesser included offense was not
ineffective assistance of counsel where defendant “did not take
the [witness] stand to profess his innocence” and trial counsel
testified, at hearing on state habeas petition, “that the
[petitioner] was aware of trial counsel’s strategy and had
agreed to it”); (3) noted that Fischer had not taken the witness
stand to profess his innocence; (4) found that defense counsel
had discussed his closing argument with Fischer before he gave
citation to the record leaves the court at a loss as to any
other purported concessions of guilt. In his oral motion to
dismiss the second degree assault charges, defense counsel
asserted that the evidence on those charges was insufficient and
then said: “Simple assault, different story.” Trial Tr. (Dec.
8, 2010) 92:19-20. But as the jury was out of the courtroom
when counsel made that statement, it is difficult to see how
this “concession” could possibly rise to the level of
ineffective assistance.
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it; (5) noted that the State had introduced evidence of a
statement by Fischer that he had pushed Tracy onto a couch;20 and
(6) reported defense counsel’s testimony at the hearing on
Fischer’s motion for a new trial that “it ‘would have been
foolish’ to argue that nothing [had] happened between Tracy and
[Fischer],” Fischer II, slip op. at 9. In her order on
Fischer’s motion to reconsider, Judge Wageling went a step
further, explaining that defense counsel’s conditional,
qualified statements were not even concessions of guilt to
simple assault.
In his memorandum of law, petitioner makes the following
argument:
During his closing argument to the jury and
throughout the trial Attorney White conceded that
defendant was guilty of “something,” but without ever
explaining to the jury what that something was. This
could have been construed by the jury as an admission
that the defendant was guilty of either the greater or
the lesser offense.
. . . .
The petitioner has ALWAYS maintained his
innocence of the charged offenses! That said, the
petitioner has also always maintained that something,
a lesser assault, did occur. . . . Moreover, while
the petitioner would not have had a problem with trial
counsel conceding guilt on a specific lesser-included
offense[,] that is not what occurred and is not what
20 At trial, Fischer’s sister testified about a statement
she gave to the police in which she reported that Fischer had
told her that he had “pushed [Tracy] onto the couch.” Trial Tr.
(Dec. 8, 2010) 44:12-13.
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is complained of here. The manner in which trial
counsel conceded guilt in a very cryptic manner . . .
served to further convolute this already confusing
case.
Pet’r’s Mem. of Law (Doc. No. 16) 67 (emphasis added).
The court begins its analysis with the trial record. As
Judge Wageling correctly observed, the jury heard competent
evidence that Fischer engaged in conduct that met the statutory
definition of simple assault, which is defined in the New
Hampshire Criminal Code to include “[p]urposely or knowingly
caus[ing] . . . unprivileged physical contact to another.” RSA
631:2-a, I(a). In his closing argument, defense counsel
conceded either the possibility that Fischer was guilty of
simple assault or that he was, in fact, guilty of that offense.
However, it is not necessary to determine the precise scope of
counsel’s concession. Given the evidence the jury heard,
counsel did not perform deficiently by conceding the obvious.
Fischer was guilty of simple assault, and he says as much in his
memorandum of law. Thus, it was a reasonable trial strategy, if
not an exemplary one, to concede guilt to simple assault. See
Reid, 139 N.H. at 533 (“We agree with the superior court that
counsel’s actions [i.e., admitting to guilt on a lesser-included
offense] constituted reasonable trial strategy.”).
If defense counsel had conceded that Fischer was guilty of
second degree assault, as petitioner suggests in his memorandum
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of law, that would be a different story. But there is no way
that any reasonable juror could possibly have interpreted
anything defense counsel said during his closing argument as a
concession of guilt on the charge of second degree assault.
In sum, petitioner cannot establish the first prong of a
Strickland violation; his counsel did not perform deficiently by
conceding that he was guilty of simple assault. Because defense
counsel’s performance did not violate Strickland, Judge
Wageling’s disposition of the issue underlying Claim 11(e) was
not an unreasonable application of Strickland. Accordingly,
Claim 11(e) fails.
8. Claims 11(f) & (g)
Petitioner claims that his trial counsel provided
ineffective assistance by failing to: (1) properly object at
trial to erroneous jury instructions concerning the meaning of
“extreme indifference to the value of human life” (Claim 11(g));
and (2) clarify for the jury the meaning of “extreme
indifference to the value of human life” in his closing argument
(Claim 11(f)). These claims fail because: (1) the jury was
properly instructed on the element at issue;21 and (2) defense
21 As the NHSC said: “We find no error in the trial court’s
instructions. Here, the jury instructions mirrored the language
that we have approved regarding the requirements for second
degree assault.” Fischer I, 165 N.H. at 714.
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counsel’s closing argument on that element closely tracked the
instructions that were given to the jury. The essence of Claims
11(f) and (g) is that defense counsel performed deficiently by
failing to effectively advance a legal theory that that the NHSC
ultimately rejected on appeal.22 The NHSC’s rejection of that
theory demonstrates that it would have been futile for defense
counsel to have pursued it more strenuously at trial,23 and it is
well established that counsel does not perform deficiently by
“declin[ing] to pursue a futile tactic,” Vieux v. Pepe, 184 F.3d
59, 64 (1st Cir. 1999) (citing United States v. Wright, 573 F.3d
681, 684 (1st Cir. 1978)); cf. Knight v. Spencer, 447 F.3d 6, 16
(1st Cir. 2006) (“Knight’s counsel could not have rendered
ineffective assistance in failing to object to alleged errors of
state evidentiary law that were either non-prejudicial or
nonexistent.”). In light of Vieux, Judge Schulman did not
unreasonably apply Strickland when he rejected Fischer’s claim
22 As with Claim 11(a), Claims 11(f) and (g) sound less like
claims that defense counsel failed to take a step he should have
taken but, rather, that he did what petitioner says he should
have done, but with insufficient vigor to prevail. Again, that
appears not to state a viable claim for ineffective assistance
of counsel.
23 It is, perhaps, possible that the trial court could have
adopted petitioner’s theory on the elements of second degree
assault if defense counsel had persuasively advocated for it,
but petitioner surely had no constitutional right to an
erroneous ruling of law in his favor.
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that trial counsel “should have more persuasively objected to
the court’s jury instruction on the element of ‘extreme
indifference to the value of human life.’” Fischer v. Diamont
(Fischer IV), 216 2014-CV-0699, slip op. at 36 (N.H. Super. Ct.,
Hillsborough Cty., N. Div. Jan. 8, 2015). Accordingly, Claims
11(f) and (g) both fail.
9. Claim 11(h)
Petitioner claims that his trial counsel provided
ineffective assistance by failing to move for a directed verdict
at the close of the State’s case, when there was insufficient
evidence from which the jury could find that the element of
“bodily injury” had been proven beyond a reasonable doubt. This
claim is a bit perplexing.
In his pro se supplemental brief, Fischer claimed that the
trial court erred by failing to rule that the State had
presented insufficient evidence to establish the bodily-injury
element of second degree assault. He asserted that the issue
was preserved because “trial counsel moved to dismiss based on
insufficiency of the evidence,” and that assertion is borne out
by the trial record, see Trial Tr. (Dec. 8, 2010) 92:15-19. It
is not at all clear how Claim 11(h) can survive the fact that
defense counsel did move to dismiss the criminal charges against
Fischer due to a purported insufficiency of the evidence.
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But, even if trial counsel had not made a motion to dismiss
based upon the insufficiency of the evidence on the bodily-
injury element, this court’s disposition of Claim Six would
dictate a determination that Claim 11(h) also fails.
Specifically, the court has already ruled that the State
introduced sufficient evidence to carry its burden of
establishing the bodily-injury element of second degree assault.
Thus, a motion to dismiss based upon an insufficiency of the
evidence on that element would have been futile. Counsel does
not perform deficiently by declining to make futile arguments,
see Vieux, 184 F.3d at 64, so failure to make the motion
petitioner now claims defense counsel did not make would not
have amounted to ineffective assistance.
Finally, for the sake of completeness, the court notes that
Fischer asserted the issue underlying Claim 11(h) in his
petition for a writ of habeas corpus in the state courts. Judge
Schulman appears to have assumed the accuracy of Fischer’s
assertion that his trial counsel did not move to dismiss on
grounds that the State had introduced in sufficient evidence of
bodily injury. He then described the evidence, determined that
it was sufficient to establish bodily injury, pointed out that
defense counsel was not constitutionally obligated to argue a
meritless motion, and rejected Fischer’s claim that his counsel
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performed ineffectively by failing to move to dismiss for
insufficient evidence of bodily injury. Nowhere in petitioner’s
memorandum of law does he even mention Judge Schulman’s order,
much less argue that it involved an unreasonable application of
Strickland. But even if petitioner had made such an argument,
it would fail; Judge Schuman’s resolution of this issue was
based upon an entirely reasonable application of Strickland.
The bottom line is this: whether or not defense counsel
moved to dismiss the charges against Fischer on grounds of
insufficient evidence of bodily injury, Claim 11(h) fails.
10. Claim 11(i)
Petitioner claims that his trial counsel provided
ineffective assistance by failing to object to the court’s
erroneous jury instruction regarding bodily injury. Fischer
raised the issue underlying Claim 11(i) in his petition for a
writ of habeas corpus in the state courts. Judge Schulman
rejected that claim, explaining that because the instruction was
a correct statement of New Hampshire law, Fischer’s counsel did
not perform deficiently by failing to challenge it. Petitioner
does not mention Judge Schulman’s decision, much less argue that
it resulted from an unreasonable application of Strickland. If
petitioner had made such an argument, the court would reject it.
Accordingly, Claim 11(i) fails.
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11. Claim 11(j)
Petitioner claims that his trial counsel provided
ineffective assistance by failing to object to the constructive
amendment of the indictment. Given this court’s rejection of
petitioner’s claim that the trial court allowed the constructive
amendment of his indictment (Claim Seven), Claim 11(j)
necessarily fails. See Vieux, 184 F.3d at 64 (explaining that
counsel does not perform deficiently by “declin[ing] to pursue a
futile tactic”).
12. Claim 11(k)
Petitioner claims that his trial counsel provided
ineffective assistance by failing to request a specific
unanimity instruction. As with Claim 11(c)(i), the argument in
petitioner’s memorandum of law is nothing more than a verbatim
recitation of the argument he made in his motion for a new
trial. Thus, as a logical matter, petitioner’s argument is
insufficient to demonstrate that Judge Wageling misapplied the
Strickland standard when she rejected this claim in her order
denying Fischer’s motion for a new trial. Accordingly, Claim
11(k) fails.
XII. Claim Twelve
Petitioner’s twelfth claim is that his appellate counsel
provided him with ineffective assistance, in three different
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ways, in violation of his rights under the Fifth, Sixth, and
Fourteenth Amendments. Again, the court begins with the legal
standard and then turns to petitioner’s claims.
A. The Legal Standard
In a recent decision on a § 2254 petition, Judge Laplante
stated the applicable legal standard:
The . . . federal standard for evaluating an
ineffective assistance of appellate counsel claim . .
. requires the petitioner to show that: (1) appellate
counsel’s performance in failing to brief certain
issues fell below an objective standard of
reasonableness, and (2) there is a reasonable
probability that, but for counsel’s unprofessional
errors, petitioner would have prevailed on those
issues.
Moussa v. Warden, N.H. State Prison, No. 12-cv-015-JL, 2015 WL
1457541, at *13 (D.N.H. Mar. 30, 2015) (citing Strickland, 466
U.S. at 686–88; Ramirez–Burgos v. United States, 313 F.3d 23, 28
(1st Cir. 2002)). Showing that a decision not to brief an issue
fell below an objective standard of reasonableness is difficult
to do because “appellate 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.” Smith v. Robbins, 528 U.S. 259, 288
(2000) (citing Jones v. Barnes, 463 U.S. 745 (1983)). Moreover,
as to issues not raised, it is generally the case that “only
when ignored issues are clearly stronger than those presented,
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will the presumption of effective assistance of counsel be
overcome.” Smith, 528 U.S. at 288 (quoting Gray v. Greer, 800
F.2d 644, 646 (7th Cir. 1986)). With those principles in mind,
the court turns to petitioner’s three claims of ineffective
assistance of appellate counsel.
1. Claim 12(a)
Petitioner claims that his appellate counsel provided
ineffective assistance by failing to assert that the jury was
improperly instructed with regard to the “recklessness” and
“extreme indifference to the value of human life” elements of
second degree assault. Appellate counsel devoted four pages of
his brief to an argument that “the trial court erred in its
instructions defining the element of extreme indifference to the
value of human life,” and the NHSC devoted more than a full page
of its published decision to that issue, see Fischer I, 165 N.H.
at 713-714. Thus, there is no basis for a claim that appellate
counsel failed to assert that the jury was improperly instructed
as to that element of second degree assault. That said, it is
true that Fischer developed this issue differently in his pro se
supplemental brief by adding the element of “recklessly” to the
analysis. However, as the court has pointed out in its
discussion of Claim Two, petitioner’s argument (both in his pro
se supplemental brief and in his memorandum of law in this case)
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is based upon a legal premise that the NHSC has soundly
rejected, i.e., that recklessness and extreme indifference to
the value of human life are both states of mind required to
prove second degree assault. Because the NHSC has rejected that
premise, if would have been futile for appellate counsel to make
the argument petitioner faults him for failing to make. Because
counsel is not required to make futile arguments, see Vieux, 184
F.3d at 64, Judge Schulman did not unreasonably apply Strickland
when he rejected this claim in his order on Fischer’s state-
court habeas petition. Accordingly, Claim 12(a) fails.
2. Claim 12(b)
Petitioner claims that his appellate counsel provided
ineffective assistance by failing to assert that the trial court
committed plain error by giving an erroneous jury instruction
regarding the definition of “bodily injury.” Fischer raised
this claim in his petition for a writ of habeas corpus in the
state court, and Judge Schulman rejected it. Among other
things, Judge Schulman: (1) pointed out that the instruction
Judge Brown gave came directly from the standard jury
instructions promulgated by the New Hampshire Bar Association’s
Task Force on Criminal jury Instructions and was consistent with
instructions that had been approved in multiple decisions from
the NHSC; and (2) rejected Fischer’s argument that “the term
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‘bodily injury’ in the Criminal Code should be construed
synonymously with the term ‘physical injury,’ as read by the New
Hampshire Supreme Court[ ] for the purpose of defining ‘abuse’
under the Child Protection Act.” Fischer IV, slip op. at 21.
Petitioner does not address Judge Schulman’s order on his state-
court habeas petition.
There is no legal support for a plain-error challenge to
the trial court’s jury instruction on bodily injury, which was
in conformance with decisions from the NHSC. Failing to argue
for an alternative definition of bodily injury on appeal was in
no way deficient, which means that petitioner cannot establish
the first prong of a Strickland violation. Necessarily, he has
fallen far short of demonstrating that Judge Schulman’s
application of Strickland was unreasonable. Accordingly, Claim
12(b) fails.
3. Claim 12(c)
Petitioner’s final claim is that his appellate counsel
provided ineffective assistance by failing to provide the NHSC
with caselaw supporting his argument that the trial court
committed plain error by failing to properly instruct the jury
about juror unanimity. The court begins with the circumstances
giving rise to Claim 12(c) and then proceeds to its analysis.
As a part of his jury charge, Judge Brown gave the
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following instruction: “In order to return a verdict, it is
necessary that each and every juror agree with the verdict.
Your verdict must be unanimous.” Trial Tr. (Dec. 8, 2010)
162:6-8. He did not further instruct the jury that it had to
reach a unanimous decision as to each element of any particular
charged offense nor did he instruct the jury that to convict
Fischer on a charge of second degree assault, it had to agree,
unanimously, on a specific bodily injury that supported the
charge on which he was convicted. Fischer’s trial counsel did
not object to this aspect of the jury instructions.
In his brief to the NHSC, Fischer’s appellate counsel
argued that the trial court committed plain error in failing to
give instructions adequate to ensure that the jury could not
convict without agreeing unanimously on a particular bodily
injury. In support of that argument, he cited State v. Greene,
in which the NHSC held that “[w]here discrete factual predicates
can provide alternative bases for finding an element of the
offense to have been established, a defendant is entitled to
jury unanimity as to the factual predicate supporting a finding
of guilt,” 137 N.H. 126, 129 (1993). The NHSC rejected that
argument:
In Greene, following a question from the jury during
deliberations, the trial court erroneously instructed
the jury that it need not unanimously find any one of
the three acts of unprivileged physical contact
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alleged in the complaint. Greene, 137 N.H. at 128,
131. In Greene, however, the defendant was charged
with misdemeanor simple assault on a police officer in
that she “punch[ed] [him] in the face with her fist
and in the torso with her fist and did further kick
him about the body.” Id. at 127 (quotation omitted
and emphases added). In that case, the element of
unprivileged contact was alleged to be three separate
blows. Id. at 129. Here, in contrast, the
indictments charged the defendant with recklessly
causing “bodily injury” to the victim in that he
caused “contusions and muscle strain to [the victim’s]
head and neck.” Thus, the jury was required to find
that the defendant recklessly caused “bodily injury”
to the victim. The defendant does not cite, nor could
we find, a case in which a court has held that a jury
must be unanimous as to which alleged injury was
caused by an assault. We therefore conclude that any
error in failing to instruct the jury that it had to
unanimously agree on a specific bodily injury caused
by the defendant’s conduct was not plain.
Fischer I, 165 N.H. at 718 (parallel citations omitted).24
Perhaps inspired by the NHSC’s stated inability to find “a
case in which a court has held that a jury must be unanimous as
to which alleged injury was caused by an assault,” Fischer I,
165 N.H. at 718, Fischer went out and found United States v.
Prentice, 683 F. Supp. 2d 991 (D. Minn. 2010). In Prentice, the
defendant was charged with an assault that “result[ed] in
serious bodily injury, to-wit: a broken arm, two broken ankles,
24 The court explained that for it “to find plain error:
‘(1) there must be an error; (2) the error must be plain; (3)
the error must affect substantial rights; and (4) the error must
seriously affect the fairness, integrity, or public reputation
of the judicial proceedings.’” Fischer I, 165 N.H. at 718
(quoting State v. Guay, 164 N.H. 696, 703 (2013)).
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and long bone injuries to both legs.” Id. at 1005. The
defendant moved to dismiss the indictment on grounds that it was
duplicitous. See id. at 1005.25 Judge Frank ruled that the
indictment was not duplicitous, see Prentice, 683 F. Supp. 2d at
1006, and denied the motion to dismiss, in an order that adopted
the following reasoning by Magistrate Judge Erickson:
Given that the victim allegedly suffered several
injuries, we recognize that there is the potential
that a less than unanimous Verdict could be returned,
if the Jurors concluded, in less than unanimous
numbers, that the Defendant was guilty of one of the
charged injuries. For example, certain of the Jurors,
but less than an unanimous number, might find that the
Defendant inflicted a broken arm on “Baby Doe,” and
other Jurors, but less than an unanimous number, might
find that the Defendant inflicted two broken ankles on
25 The order in Prentice describes the concept of duplicity
in the following way:
“‘Duplicity’ is the joining in a single count of
two or more distinct offenses.” United States v.
Moore, 184 F.3d 790, 793 (8th Cir. 1999), quoting
United States v. Street, 66 F.3d 969, 974 (8th Cir.
1995). As such, “[t]he risk behind a duplicitous
charge is that a jury may convict the defendant
without unanimous agreement on a particular offense.”
Id.; see also, United States v. Street, supra at 974
(“The principal vice of a duplicitous indictment is
that the jury may convict a defendant without
unanimous agreement on the defendant’s guilt with
respect to a particular offense.”). “The focus of a
duplicity inquiry is whether distinct and separate
‘offenses’ are alleged in a single Count.” United
States v. Finn, 919 F. Supp. 1305, 1345 (D. Minn.
1995), quoting United States v. Correa–Ventura, 6 F.3d
1070, 1081 n.18 (5th Cir. 1993).
683 F. Supp. 2d at 1005 (parallel citations and subsequent
history omitted).
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“Baby Doe.” While the findings of the Jury would not
be unanimous as to any particular injury, there might
be unanimity that the Defendant was guilty of
inflicting some physical injury upon Baby Doe. We
agree with the Defendant, that he is entitled to a
unanimous Verdict as to any given physical injury, but
we conclude that means exist to effectively assure an
unanimous Verdict.
In our view, any risk, with respect to the
requirement of unanimity, can be cured by the Trial
Court, through the use of limiting instructions and
Special Verdict forms, which would assure unanimity
with respect to each of the injuries charged. See,
United States v. Rabinowitz, 56 F.3d 932, 933 (8th
Cir. 1995) (“The risk of a nonunanimous jury verdict
inherent in a duplicitous count may be cured by a
limiting instruction.”).
Id. (additional citations omitted).
In his state-court habeas petition, Fischer claimed that
his appellate counsel provided ineffective assistance by failing
to find Prentice and provide it to the NHSC. Judge Schulman
rejected that argument:
While Prentice certainly supports Fischer’s
position, it does not support it so authoritatively as
to render appellate counsel’s representation
ineffective. The citation to a single, trial level
decision would hardly have established plain error.
Therefore, Fischer cannot establish a reasonable
probability that, had appellate counsel cited Prentice
he would have won his appeal. Furthermore, it was
certainly not deficient representation for New
Hampshire appellate counsel to fail to become aware of
non-controlling decisional law from the District of
Minnesota.
Fischer IV, slip op. at 35.
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Fischer argues that while he “cannot offer additional on-
point cases because he lacks access to the legal resources to do
so, surely similarly holding cases exist in other State and
Federal courts.” Pet’r’s Mem. of Law (Doc. No. 16) 71. But he
has neither argued nor established that Judge Shulman’s decision
was based on an unreasonable application of Strickland.
Moreover, this court concurs with Judge Schulman’s
assessment of the strength of the authority provided by
Prentice; that decision was issued by a trial court in another
jurisdiction. Beyond that, Prentice is not “DIRECTLY ON POINT,”
Pet’r’s Mem. of Law (Doc. No. 16) 71, given the different
procedural postures of that case and this one. While Prentice
states that the defendant in that case was “entitled to a
unanimous Verdict as to any given physical injury,” 683 F. Supp.
2d at 1006, the context of that statement shows that Prentice is
not “a case in which a court has held that a jury must be
unanimous as to which alleged injury was caused by an assault,”
Fischer I, 165 N.H. at 718 (emphasis added). More specifically,
Prentice did not involve a challenge to a trial court’s failure
to give an instruction on jury unanimity. For all the foregoing
reasons, this court concurs with Judge Schulman that the
persuasive value of Prentice is not sufficient to support a
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claim that Fischer’s appellate counsel provided ineffective
assistance by failing to cite it to the NHSC.
To restate, petitioner has not established that Judge
Schulman’s decision was based upon an unreasonable application
of Strickland. Accordingly, Claim 12 (c) fails.
Certificate of Appealability
The Rules Governing Section 2254 Proceedings (Ҥ 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). Because Fischer has failed to make a substantial
showing of the denial of the constitutional right, the district
judge should decline to issue a certificate of appealability.
Conclusion
For the reasons detailed above, the district judge should
deny Fischer’s petition for a writ of habeas corpus and should
also decline to issue a certificate of appealability.
Any objection to this report and recommendation must be
filed within 14 days of receipt of this notice. See Fed. R.
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Civ. P. 72(b)(2). Failure to file an objection within the
specified time waives the right to appeal the district court’s
order. See United States v. De Jesús-Viera, 655 F.3d 52, 57
(1st Cir. 2011); Sch. Union No. 37 v. United Nat’l Ins. Co., 617
F.3d 554, 564 (1st Cir. 2010) (only issues fairly raised by
objections to magistrate judge’s report are subject to review by
district court; issues not preserved by such objection are
precluded on appeal).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
September 2, 2016
cc: David Fischer, pro se
Elizabeth Woodcock, Esq.
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