Messina v. Northern NH Correctional Facility, Warden

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Michael F. Messina Jr.
v. 	Case No. 19-cv-539-SM-AJ
Corey Riendeau, Warden,
Northern New Hampshire
Correctional Facility
REPORT AND RECOMMENDATION
Petitioner Michael F. Messina Jr., representing himself,
filed a petition for a writ of habeas corpus under 28 U.S.C. §
2254 (Doc. No. 1) and several petition addenda (Doc. Nos. 4, 6,
8, 10, 11, 12, 14, 15).1 	The § 2254 petition documents are
before the undersigned Magistrate Judge for preliminary review.
See Rule 4 of the Rules Governing § 2254 Cases (“§ 2254 Rules);
LR 4.3(d)(4).
Background
Mr. Messina was convicted, after a jury trial, of: (1)
allowing his property to be used for prostitution involving a
minor victim, (2) creating a common nuisance by allowing people
with drug dependency to use drugs on his property, (3)
endangering the welfare of a child, and (4) interference with
1 The Court construes the documents identified here as the
Petition (Doc. No. 1) and Petition Addenda (Doc. Nos. 4, 6, 8,
10, 11, 12, 14, 15), together, to be the Petition in this matter
for all purposes.
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custody. 	See State v. Messina, No. 216-2014-CR-00288, -01353
(N.H. Super Ct., Hillsborough Cty. N.). 	He was sentenced on
August 5, 2015 to a term of imprisonment in the New Hamsphire
Department of Corrections. 	See id. 	Mr. Messina filed an
appeal, and the New Hampshire Supreme Court (“NHSC”) affirmed
his conviction on August 22, 2016. 	See State v. Messina, No.
2015-0539 (N.H. Aug. 22, 2016).
Mr. Messina filed his first petition for a writ of habeas
corpus in State Court on April 25, 2018. 	See Messina v.
Riendeau, No. 214-2018-cv-00046 (N.H. Super. Ct., Coös Cty.).
The State Habeas Court denied his petition on August 24, 2018.
See id. 	Mr. Messina appealed the denial of his petition by
filing a timely Notice of Discretionary Appeal (“NODA”) in the
NHSC, but that Court declined the appeal. 	See Messina v.
Riendeau, No. 2018-0544 (N.H. Nov. 28, 2018).
Mr. Messina filed his second State Court petition for a
writ of habeas corpus on April 23, 2021. 	See Messina v.
Riendeau, No. 214-2021-CV-00040 (N.H. Super. Ct., Coös Cty.).
That Court denied Mr. Messina’s Petition without a hearing on
July 16, 2021. 	See id. 	Mr. Messina filed a timely NODA in the
NHSC, but that Court declined the appeal. 	See Messina v.
Riendeau, No. 2021-0379 (N.H. Nov. 16, 2021).
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Claims
The Court construes Mr. Messina’s Petition here to assert
the following claims for relief:
1. 	The Trial Court violated Mr. Messina’s Sixth Amendment
right to a fair trial and Fourteenth Amendment right to due
process by:
a. 	allowing photographs of and testimony describing
Mr. Messina’s basement, where the victim in Mr.
Messina’s criminal case was discovered, and where
prostitution took place, to be admitted in evidence,
when that evidence was unduly prejudicial to Mr.
Messina; and
b. 	allowing extrinsic evidence of a prior
inconsistent statement by the victim’s mother, which
was prejudicial to Mr. Messina, to be admitted in
evidence, when the victim’s mother was not given any
opportunity to explain or deny her statement.
2. 	The Trial Court violated Mr. Messina’s Fourth
Amendment right not to be subject to a warrantless search
of his home by admitting evidence at trial obtained by the
Manchester Police Department (“MPD”) during a search of his
home, as the MPD:
a. 	failed to obtain a search warrant prior to
searching his home and seizing items from his home,
and
b. 	failed to follow required procedures to obtain
the search warrant.
3. 	The Trial Court violated Mr. Messina’s Fifth and
Fourteenth Amendment rights not to incriminate himself by
allowing evidence of Mr. Messina’s statements to the police
to be admitted at trial where the statements were coerced,
in that they were obtained during custodial interrogation
during which the police did not give Mr. Messina Miranda2
warnings, and after Mr. Messina asserted that he no longer
wished to submit to questioning by the police.
2 See Miranda v. Arizona, 384 U.S. 436 (1966).
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4. 	Mr. Messina’s trial attorney failed to provide him
with the effective assistance of counsel, in violation of
Mr. Messina’s Sixth Amendment rights, in that trial
counsel:
a. 	failed to obtain any expert witness to
demonstrate that the State’s trial witnesses lacked
credibility;
b. 	after being provided with the names of witnesses
who could testify in Mr. Messina’s favor, failed to
investigate or contact some of those witnesses and
failed to call any witnesses in Mr. Messina’s defense
at trial, and failed to consult with Mr. Messina about
his decision not to call defense witnesses;
c. 	failed to introduce certain exculpatory evidence
at trial;
d. 	improperly talked Mr. Messina out of testifying
without fully explaining the advantages and
disadvantages of testifying, despite Mr. Messina
having told his attorney that he was innocent of the
offenses charged and wanted to testify at trial;
e. 	failed to allow Mr. Messina to waive his right to
testify in the presence of the trial judge;
f. 	failed in his obligations to keep Mr. Messina
informed of the progress in his case prior to trial,
and to provide him with certain information concerning
his case, which prevented Mr. Messina from providing
his attorney with information that could be helpful to
his defense;
g. 	failed to preserve certain issues for appeal by
failing to make objections during trial;
h. 	rejected the theory of defense proposed by Mr.
Messina, and failed to prepare an alternative defense
theory to use in the event trial counsel’s original
theory of defense did not pan out at trial;
i. 	failed to request in camera review of any
confidential materials which were likely to have
included exculpatory evidence relevant to the victim’s
credibility, including, among other things, the
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victim’s: hospital records, records and reports from
Community Action Counselling, and psychiatric records
and reports;
j. 	failed to adequately cross-examine or impeach the
State’s witnesses;
k. 	failed to object to inconsistent statements made
by State’s witnesses during trial;
l. 	failed to object to the prosecutor’s misconduct
(identified here as Claims 7(a)-(e)) at trial and
sentencing; and
m. 	withheld exculpatory “Brady”3 material from Mr.
Messina.
5. 	The cumulative effect of trial counsel’s errors denied
Mr. Messina the effective assistance of counsel, in
violation of his Sixth Amendment rights.
6. 	Mr. Messina’s Sixth Amendment rights to a speedy and
public trial by an impartial journey, and his Sixth and
Fourteenth Amendment rights to present evidence favorable
to his defense were violated because he was unable to call
defense witnesses and present all evidence in his favor at
trial, as he was denied mandatory process to obtain such
testimony and evidence to present at trial.
7. 	The State prosecutors engaged in prosecutorial
misconduct by:
a. 	withholding exculpatory “Brady” materials from
the defense;
b. 	making misrepresentations in opening and closing
argument which were prejudicial to Mr. Messina;
c. 	improperly appealing to the passions and
prejudices of the jurors;
d. 	suborning perjury by State’s witnesses; and
e. 	misrepresenting certain State’s witnesses’
criminal records to the trial court at sentencing.
3 See Brady v. Maryland, 373 U.S. 83 (1963).
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8. 	The New Hampshire Supreme Court failed to provide Mr.
Messina with the opportunity to be heard on the claims he
asserted in his 2018 state habeas petition, when it
declined Mr. Messina’s appeal of those proceedings, in
violation of his First Amendment right to petition the
Court for a redress of grievances.
Discussion
I. 	Preliminary Review Standard
In conducting preliminary review of a § 2254 petition, if
“it plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief in the district
court, the judge must dismiss the petition.” 	§ 2254 Rule 4; see
also McFarland v. Scott, 512 U.S. 849, 856 (1994) (“Federal
courts are authorized to dismiss summarily any habeas petition
that appears legally insufficient on its face.”). 	Because Mr.
Messina is self-represented, the Court construes the petition
liberally. 	See Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir.
2008).
II. 	Claims 2(a)-(b)
In the claims identified above as Claims 2(a) and 2(b), Mr.
Messina asserts that his conviction was obtained in violation of
his Fourth Amendment right not to be subject to a warrantless
search of his home because MPD officers searched his home prior
to obtaining a search warrant. 	Further, he alleges, the MPD’s
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failure to obtain the warrant in person, rather than over the
phone was improper and violated his Fourth Amendment rights.
The Supreme Court has held that, “where the State has
provided an opportunity for full and fair litigation of a Fourth
Amendment claim, the Constitution does not require that a state
prisoner be granted federal habeas corpus relief on the ground
that evidence obtained in an unconstitutional search or seizure
was introduced at his trial.” 	Stone v. Powell, 428 U.S. 465,
482 (1976). 	“[A] full and fair opportunity to litigate means
that the state has made available to defendants a set of
procedures suitably crafted to test for possible Fourth
Amendment violations.” 	Sanna v. DiPaolo, 265 F.3d 1, 9 (1st
Cir. 2001).
Here, the procedural history of Mr. Messina’s criminal case
demonstrates that the New Hampshire state courts provided him
with the opportunity to litigate his Fourth Amendment claims
there, and that he did so. 	Mr. Messina filed a motion to
suppress evidence in his criminal case and the Court held an
evidentiary hearing on that motion on May 11, 2015. 	In
addition, while Mr. Messina did not brief the denial of his
motion to suppress in his direct appeal, he could have done so.
Because Mr. Messina had a full and fair opportunity to litigate
his Fourth Amendment challenges to admission of evidence
obtained during the search of his home, he cannot assert that
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Fourth Amendment claim in this § 2254 action, and the District
Judge should dismiss Claims 2(a) and 2(b).
III. Claim 4(m)
Mr. Messina asserts that his own attorney violated his
Fourteenth Amendment right to due process by failing to provide
Mr. Messina with exculpatory evidence in his possession, in
violation of Brady v. Maryland, 373 U.S. 83 (1963). 	Under
Brady, “the government is required to disclose to the defense
evidence that is both favorable and material either to guilt or
innocence, which includes evidence that is exculpatory and
impeaching.” 	United States v. Orlandella, 96 F.4th 71, 93 (1st
Cir. 2024). 	Brady does not, however, obligate defense attorneys
to provide exculpatory evidence in their possession to the
defendants they represent.
To the extent Mr. Messina argues that his attorney violated
his Sixth Amendment right to the effective assistance of counsel
by failing to provide him with information or to discuss or
review information with him, to the detriment of Mr. Messina’s
case, that claim is already set forth in his petition and the
Court has identified it above as Claim 4(f). 	For the reasons
explained here, however, the District Judge should dismiss the
claim identified above as Claim 4(m).
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IV. 	Remaining Claims
The Court finds, based on the current record in this case,
that all of the above-listed claims, other than claims 2(a)-(b)
and 4(m), appear to be exhausted and do not otherwise appear to
be invalid on their face, and those claims may proceed at this
time. 	In an Order issued simultaneously with this Report and
Recommendation, the Court directs service of the claims
identified herein as Claims 1(a)-(b), 3, 4(a)-(l), 5, 6, 7(a)-
(e), and 8, on the respondent.
Conclusion
For the reasons explained herein, the undersigned
Magistrate Judge recommends that the District Judge dismiss
Claims 2(a)-(b) and 4(m), as set forth above, from the habeas
petition in this action. 	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 any
objection 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). 	Only those issues
raised by the objection(s) to this Report and Recommendation
“‘are subject to review in the district court and those not
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preserved by such objection are precluded on appeal.’” 	Id.
(citations omitted).
________________________
Andrea K. Johnstone
United States Magistrate Judge
July 22, 2024
cc: Michael F. Messina Jr., pro se
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