Kellogg-Roe v. NH State Prison, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Zebadiah G. Kellogg-Roe
v. Civil No. 15-cv-116-PB
Warden, New Hampshire State Prison
REPORT AND RECOMMENDATION
Before this court are petitioner Zebadiah G. Kellogg-Roe’s
(first) motion to amend his petition for a writ of habeas corpus
(Doc. No. 65), a notice regarding that motion (Doc. No. 74), and
Kellogg-Roe’s (second) motion to amend his petition (Doc. No.
75).
Background
The following claims have been identified as asserted in
Kellogg-Roe’s original § 2254 petition:
1. Kellogg-Roe’s conviction was obtained in violation of
his Sixth Amendment right to the effective assistance of
counsel at trial, in that Kellogg-Roe’s court-appointed
defense counsel, Attorneys Anthony Sculimbrene and Don
Topham, did not effectively communicate a five-year plea
deal that had been offered to Kellogg-Roe.
2. Kellogg-Roe’s conviction was obtained in violation of
his Sixth Amendment right to counsel, in that the trial
court did not allow Attorneys Sculimbrene and Topham to
cross-examine the victim at trial.
3. Kellogg-Roe’s Fourteenth Amendment right to due
process was violated when he was denied access to the
presentence investigation report (“PSI”) before his
sentence was imposed.
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In the (first) motion to amend (Doc. No. 65), Kellogg-Roe
seeks leave to drop Claim 3, regarding the PSI, and to add two
new claims, identified below as Claims 4 and 5:
4. Kellogg-Roe’s conviction was obtained in violation of
his Sixth Amendment right to the effective assistance of
counsel, in that Attorneys Sculimbrene and Topham did not
cross-examine the victim at trial.
5. Kellogg-Roe’s conviction was obtained in violation of
his Sixth Amendment right to confront witnesses, in that
the trial court did not allow, nor did it order, Attorneys
Sculimbrene and Topham to cross-examine the victim at
trial.
In Kellogg-Roe’s (second) motion to amend (Doc. No. 75),
Kellogg-Roe seeks leave to add two additional claims to the
§ 2254 petition (Claims 6 and 7 below), alleging violations of
Kellogg-Roe’s free speech rights and due process rights:
6. Kellogg-Roe’s conviction was obtained in violation of
the First Amendment right to free speech, and Fourteenth
Amendment right to due process, in that the trial court
deprived Kellogg-Roe of the right to insist that Kellogg-
Roe’s counsel at trial abide by Kellogg-Roe’s preference
for a “silent defense,” and also ordered counsel to mount
an adversarial defense, and did not allow counsel to
“stand[] down.”
7. Kellogg-Roe’s conviction was obtained in violation of
Kellogg-Roe’s Fourteenth Amendment right to due process,
when the trial court ordered Attorneys Sculimbrene and
Topham to forego cross-examining the victim at trial.
Discussion
I. Claim 3
After being duly advised regarding the limitations on
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claims raised in second or successive petitions under 28 U.S.C.
§ 2244(b), see March 10, 2017 Order (Doc. No. 73), Kellogg-Roe
now states that he intends to forego Claim 3 as a ground for
relief. See Doc. No. 74. Accordingly, the district judge
should grant the motion to amend (Doc. No. 65), in part, to the
extent that Claim 3 should be deemed foregone and dismissed from
this action.
II. Claim 4
Kellogg-Roe’s (first) motion to amend (Doc. No. 65) seeks
to add Claim 4 to this action. That claim appear facially
valid, and Kellogg-Roe appears to have exhausted state remedies
as to Claim 4, rendering it appropriate to add to the petition.
As this case is presently stayed, however, respondent need not
file any supplemental answer or motion in response to Claim 4 at
this time. After that stay is lifted, the court may issue an
appropriate order setting a deadline for respondent to file an
answer to Claim 4 and any other new claim added to this case
while the stay has been in effect.
III. Claims 5 and 6
Kellogg-Roe’s (first) motion to amend (Doc. No. 65) seeks
to add Claim 5 to this action, and Kellogg-Roe’s (second) motion
to amend (Doc. No. 75) seeks leave to add Claim 6 to the
petition. It is not clear to the court that state remedies as
to Claims 5 and 6 have been exhausted. Accordingly, in an Order
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issued this date, the court has directed Kellogg-Roe to either
demonstrate exhaustion of Claims 5 and 6, or notify the court
whether he intends to exhaust those remedies while the stay in
this case remains in effect.
III. Claim 7
Kellogg-Roe’s (second) motion to amend (Doc. No. 75) also
seeks leave to add Claim 7 to the petition. Claim 7 is
essentially duplicative of Claims 2, 4, and 5, although it
raises the same issue – the trial court’s order forbidding
Kellogg-Roe’s counsel from cross-examining the victim – as a
violation of Kellogg-Roe’s right to due process, instead of his
Sixth Amendment rights to counsel and to confront witnesses.
Adding Claim 7 to the petition would not add any separately
cognizable ground for relief under 28 U.S.C. § 2254. Cf.
United States v. Lanier, 520 U.S. 259, 272 n.7 (1997) (“if a
constitutional claim is covered by a specific constitutional
provision, such as the Fourth or Eighth Amendment, the claim
must be analyzed under the standard appropriate to that specific
provision, not under the rubric of substantive due process”
(citing Graham v. Connor, 490 U.S. 386 (1989)). Accordingly,
the district judge should deny the (second) motion to amend
(Doc. No. 75) to the extent it seeks leave to add Claim 7 here.
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Conclusion
For the foregoing reasons, the district judge should grant,
in part, Kellogg-Roe’s (first) motion to amend the petition
(Doc. No. 65), allowing Claim 3 to be foregone, and adding Claim
4 as a ground for relief under 28 U.S.C. § 2254. In addition,
the district judge should deny, in part, Kellogg-Roe’s (second)
motion to amend the petition (Doc. No. 75), to the extent it
seeks to add Claim 7 to the petition. The remaining relief
sought in those motions (Doc. Nos. 65 and 75) is the subject of
the Order issued this date.
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
April 10, 2017
cc: Zebadiah G. Kellogg-Roe, pro se
Elizabeth C. Woodcock, Esq.
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