Beers v. State of New Hampshire

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Timothy Beers
v. 	Civil No. 15-cv-517-PB
Warden, New Hampshire State Prison
REPORT AND RECOMMENDATION
Before this court is habeas corpus petitioner Timothy
Beers’s motion (Doc. No. 27), seeking to forego further
litigation of Claims 1 and 3 in this action.1 	While it is clear
that Beers would prefer that the court hear those claims on
1This court previously identified (unexhausted) Claims 1 and
3 as follows:
1. 	Beers’s conviction was obtained in violation of his
Fourteenth Amendment right to due process in that, with
regard to the alleged false trial testimony of a
prosecution witness in the second trial:
a. 	The prosecutor knowingly allowed the witness to
perjure himself; and
b. 	The trial judge did not sua sponte stop the
witness from perjuring himself.
2. 	. . . .
3. 	Beers’s conviction was obtained in violation of his
Sixth Amendment right to a fair trial and an impartial
jury, in that the court clerk added the phrase, “He did
commit,” when reading the charges against Beers to the
impaneled jury, which had the effect of biasing the jury
against Beers.
. . . .
August 14, 2018 Order (Doc. No. 21).
Case 1:15-cv-00517-PB Document 28 Filed 12/19/18 Page 1 of 4

2
their merits, rather than dismiss them, this court has explained
to Beers that because he has not exhausted his state remedies on
those two claims and has not shown good cause for failing to do
so, his petition remains “mixed,” and none of his claims can be
considered on the merits. 	See Dec. 11, 2018 Order; Sept. 14,
2018 Report and Recommendation (“R&R”) (Doc. No. 23); Aug. 14,
2018 Order (Doc. No. 21). 	This court has also explained that
the dismissal of Claims 1 and 3 at this time will allow the
court to consider the merits of the rest of his claims, but will
also likely result in Beers being unable to seek relief on
Claims 1 and 3 in a future petition challenging his conviction.
See Nov. 14, 2018 Order; Sept. 14, 2018 R&R (Doc. No. 23).
Therefore, unless Beers files a timely objection to this R&R
effectively rescinding his motion to forego Claims 1 and 3, the
district judge should grant that motion (Doc. No. 27), dismiss
those claims, and direct respondent to answer Claims 2, 4, 5,
and 6 set forth below:
1. 	. . . .
2. 	Beers’s conviction was obtained in violation of his
Fourteenth Amendment right to due process in that:
a. 	The prosecutor engaged in misconduct, by arguing
that Beers did not take the opportunity to provide the
jury with a motive for why that witness would have
lied; and
b. 	The trial court improperly overruled Beers’s
trial counsel’s objection, and failed to declare a
mistrial sua sponte, in response to the prosecutor’s
closing argument, in which the prosecutor argued that
Beers did not take the opportunity to provide the jury
Case 1:15-cv-00517-PB Document 28 Filed 12/19/18 Page 2 of 4

3
with a motive for why the witness would have lied.
3. 	. . . .
4. 	Beers’s conviction was obtained in violation of his
Fifth Amendment privilege against self-incrimination as the
prosecutor’s closing argument indirectly commented on
Beers’s failure to testify, in arguing that Beers did not
take the opportunity to provide the jury with a motive for
why a witness lied.
5. 	Beers’s conviction was obtained in violation of his
Sixth Amendment right to the effective assistance of
counsel, in that trial counsel failed to object to the
prosecutor’s closing argument, to the extent it argued that
since the victim’s testimony didn’t need to be
corroborated, the jury could convict Beers if the jury
believed the victim’s testimony beyond a reasonable doubt,
which had the effect of misstating the burden of proof.
6. 	Beers’s conviction was obtained in violation of his
Fourteenth Amendment right to due process as the trial
judge failed to sustain defense counsel’s objection that
the prosecutor’s closing argument improperly asked the jury
to draw inferences from facts not in evidence.
Aug. 14, 2018 Order (Doc. No. 21) (listing claims).
Conclusion
For the foregoing reasons, the magistrate judge recommends
that the district judge issue the following Order:
1. 	Petitioner’s motion to drop Claims 1 and 3 (Doc. No.
27) is GRANTED. 	Claims 1 and 3 are dismissed.
2. 	The clerk’s office shall serve upon the New Hampshire
Office of the Attorney General, as provided in the
Agreement on Acceptance of Service, electronic copies of:
the Amended Petition (Doc. No. 20); the Dec. 14, 2018
Report and Recommendation (“R&R”); the Order approving the
Dec. 14, 2018 R&R; and AO 18-1. 	Respondent shall file an
answer, motion to dismiss, or other response to the Amended
Petition and Claims 2, 4, 5, and 6 as identified in the
Dec. 14, 2018 R&R within ninety days of service. 	The
answer shall comply with AO 18-1 and Rule 5 of the Rules
Governing § 2254 Cases. 	This matter will thereafter
Case 1:15-cv-00517-PB Document 28 Filed 12/19/18 Page 3 of 4

4
proceed in accordance with LR 7.4.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Failure to file objections within the specified
time waives the right to appeal the district court’s order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
December 19, 2018
cc: Timothy Beers, pro se
Case 1:15-cv-00517-PB Document 28 Filed 12/19/18 Page 4 of 4