Rogers v. NH State Prison, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Scott N. Rogers
v. Civil No. 16-cv-388-LM
Warden, Northern New Hampshire
Correctional Facility
REPORT AND RECOMMENDATION
Before the court is Scott N. Rogers’s petition for writ of
habeas corpus (Doc. No. 1) and an addendum to that petition
(Doc. No. 7), filed pursuant to 28 U.S.C. § 2254. The matter is
here for preliminary review to determine whether the claims
raised are facially valid and may proceed. See Rule 4 of the
Rules Governing Section 2254 cases (“§ 2254 Rules”); LR
4.3(d)(4)(A).
§ 2254 Rule 4 Standard
Pursuant to § 2254 Rule 4, a judge is required to promptly
examine any petition for habeas relief, and 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.” Id. “Federal courts are
authorized to dismiss summarily any habeas petition that appears
legally insufficient on its face.” McFarland v. Scott, 512 U.S.
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849, 856 (1994) (citing § 2254 Rule 4)). The court construes
Rogers’s pleadings liberally, with due consideration for his pro
se status. See Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir.
2008).
Background
I. State Investigation and Prosecution
In March 2008, the New Hampshire Drug Task Force provided
the Bedford Police Department (“BPD”) with a recording of a one-
party intercept phone conversation between Rogers and a
confidential informant (“CI”), in which Rogers and the CI
discussed Rogers’s involvement in the thefts of new televisions
from a hotel under construction in Bedford, New Hampshire. See
State v. Rogers, No. 2010-0515 (N.H. June 11, 2013) (“NHSC
Case”), slip op. at 1. The police conducted a surveillance of
the hotel, and based upon information from the surveillance and
the one-party intercept recording, the BPD obtained a search
warrant for Rogers’s apartment. Id. The ensuing search yielded
three stolen televisions. Id.
Rogers was indicted by a grand jury in Hillsborough County
Superior Court North in June 2008 for receiving stolen property,
burglary, and theft by unauthorized taking, relating to the
hotel heist. Rogers was initially represented in the state case
by Attorney Maryellen Biletch, but prior to trial in the state
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case, he moved to represent himself. The trial court granted
that motion and appointed stand-by counsel, Attorney Jorel
Booker, to assist Rogers at trial.
Rogers filed several discovery motions pro se in that case,
including a request for access to the one-party intercept phone
call at issue in the search warrant application. Id. The state
court held a hearing on those motions on November 10, 2009, at
which Rogers appeared pro se. Attorney Michael Zaino appeared
for the state. See Rogers v. Gerry, No. 13-cv-322-LM (D.N.H.)
(“First Federal Habeas Case”) (ECF No. 27-7). Following that
hearing, on November 17, 2009, the trial court denied Rogers’s
request for access to the one-party intercept recording, on the
grounds that the State had not disclosed the identity of the
informant, and the State neither intended to elicit testimony in
support of the warrant nor planned to call the informant to
testify at trial. See Nov. 17, 2009 Order, State v. Rogers,
Nos. 09-S-374-78, 08-S-1492-94 (N.H. Super. Ct., Hillsborough
Cty. N., Nov. 17, 2009) (“State Criminal Case”), First Federal
Habeas Case (ECF No. 22-2, at 44-45).
The state presented evidence at trial that Rogers and
Michael Grenon, a carpenter working on the hotel job site, drove
to the construction site using Rogers’s Jeep, and used Grenon’s
key to enter the building after hours to take new televisions,
which they brought back to Rogers’s apartment in Rogers’s Jeep.
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First Federal Habeas Case, 2014 U.S. Dist. LEXIS 167939, 2014 WL
6883086 (D.N.H. Nov. 4, 2014) (ECF No. 39), R&R approved, No.
13-CV-322-LM, 2014 U.S. Dist. LEXIS 167941, 2014 WL 6883086, at
*1 (D.N.H. Dec. 4, 2014) (ECF No. 43). Grenon testified at
Rogers’s trial that they went to the hotel twice to steal
televisions, and that Rogers stayed outside the first time and
then entered the building on the second occasion. See State
Criminal Case, Trial Tr. v.1 (N.H. Super., Hillsborough Cnty.
N., Mar. 23, 2010), at 68, 80, First Federal Habeas Case (ECF
No. 22-7, at 68, 80). BPD Officer Griswold testified that the
search of Rogers’s apartment yielded three stolen televisions.
Id., at 99. Officer Griswold also testified that, when
confronted with the fact that three of the televisions were
found in his apartment, Rogers told Griswold that the BPD “had
him for receiving and not for burglary.” Id.
Rogers did not testify in the March 2010 Superior Court
trial, but cross-examined the state’s witnesses and called
several witnesses of his own, including the person he knew to be
the CI, who was neither a witness to, nor a participant in the
crime. The CI testified that he remembered Rogers saying Rogers
would “minus” the money the CI owed to Rogers if the CI helped
Rogers steal the televisions. Id. at 130.
The jury convicted Rogers of the charged offenses. In the
July 2010 sentencing in Rogers’s state case, in which Attorney
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David Ruoff entered an appearance on Rogers’s behalf, the trial
court imposed an aggregate sentence of twenty to sixty years,
stand committed, for all three convictions. That sentence was
comprised of a ten to thirty year sentence on the charge of
burglary, and two concurrent sentences of ten to thirty years on
the charges of receiving stolen property and theft by authorized
taking. The sentencing court directed that the two concurrent
sentences be served consecutively to the burglary sentence.
Rogers’s long criminal record and recidivism were cited by the
state as reasons for recommending a lengthy sentence for Rogers,
and the court accepted that recommendation, finding it to be
consistent with the pre-sentence investigation report. See id.
(ECF No. 22-9, at 10-11) (Tr. Sent’g) (N.H. Super. Ct.,
Hillsborough Cty. N., July 1, 2010)). The New Hampshire Supreme
Court (“NHSC”) affirmed Rogers’s convictions. See NHSC Case.
II. Federal Prosecution
In February 2009, while the state prosecution was pending,
a federal grand jury indicted Rogers on drug crimes alleged to
have occurred on two dates in January and February 2009. The
pretrial period in the federal prosecution overlapped with the
state proceedings on the March 2008 television theft, and the
same prosecutor in the state case, Attorney Michael Zaino,
appeared as a Special Assistant United States Attorney in the
federal prosecution.
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Rogers moved to represent himself in the federal criminal
case in September 2009, and the court granted that motion. On
November 16, 2009, the federal court held a hearing on discovery
motions Rogers had filed pro se in that case. Attorney Zaino,
appearing on behalf of the United States in that hearing,
responded to Rogers’s motion to compel the government to produce
a “one way” telephone conversation recording between an
informant and Rogers. Attorney Zaino stated that he did not
believe any of the drug transactions between the informant and
the defendant were recorded. Judge Barbadoro then directed
Attorney Zaino to double-check his files and to produce to
Rogers on that date any recordings of phone conversations
containing Rogers’s voice. See Tr. Mot. Hr’g, United States v.
Rogers, No. 09-cr-45-01-PB (D.N.H. Nov. 16, 2009) (“Federal
Prosecution”), at 5, First Federal Habeas Case (ECF No. 36-1, at
5). Judge Barbadoro issued that order on November 16, 2009, one
day before the state court denied Rogers’s motion to compel
production of the March 2008 one-party intercept in the state
case. Rogers never received the one-party intercept recording
in discovery in either the state or the federal prosecution.
The federal prosecution ended one day after Rogers was
sentenced in the state case. Judge Barbadoro granted the United
States’ assented to motion to dismiss those charges, with
prejudice, on July 2, 2010. See July 2, 2010 Order, Federal
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Prosecution (granting Motion to Dismiss, ECF No. 50).
III. Prior Federal Habeas Corpus Petition
Beginning in 2013 and concluding with post-judgment motions
filed in 2016, Rogers fully litigated a § 2254 petition
previously in the District of New Hampshire challenging the same
state convictions and sentences at issue in the instant
petition.1 The court construed that prior § 2254 petition as
intending to assert only one claim for federal habeas relief,
that the state court’s denial of Rogers’s motion for access to
the recording of the one-party intercept call between Rogers and
the CI violated Rogers’s right to due process. See Jan. 23,
2014 Order, 2014 DNH 012, First Federal Habeas Case (D.N.H. Jan.
23, 2014) (ECF No. 11-1), slip op. at 3-4. The court noted in
that case that the petition listed seven additional federal due
process issues, which the court determined did not appear to be
intended to state claims for federal habeas relief. The court
expressly instructed Rogers, however, that if he intended to
include those matters as grounds for relief under § 2254, he
could move to amend the petition to add those claims and to
1Rogers also filed a § 2254 petition in 2012 that the court
dismissed, without addressing the merits of any claims, in that
Rogers’s direct appeal of his conviction remained pending in the
NHSC when he filed that § 2254 petition. See Rogers v. New
Hampshire, No. 12-cv-324-PB (D.N.H. Oct. 1, 2012) (ECF No. 6),
R&R approved, No. 12-cv-324-PB (D.N.H. Jan. 4, 2013) (ECF No.
9).
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demonstrate that he had exhausted his state remedies as to those
issues. See id. at 4.
Respondent moved for summary judgment on Rogers’s prior
§ 2254 petition, and the district judge granted that motion and
denied a certificate of appealability. See First Federal Habeas
Case, 2014 U.S. Dist. LEXIS 167939, 2014 WL 6883086 (D.N.H. Nov.
4, 2014), R&R approved, No. 13-CV-322-LM, 2014 U.S. Dist. LEXIS
167941, 2014 WL 6883086, at *1 (D.N.H. Dec. 4, 2014). Post-
judgment motions in that case were denied.
Claims
Liberally construed, the instant (second) § 2254 petition
(Doc. No. 1) and its addendum (Doc. No. 7) assert the following
claims as grounds for relief under § 22542:
1. Prosecutor Michael Zaino engaged in prosecutorial
misconduct, in violation of Rogers’s Fourteenth Amendment
right to due process, by not providing Rogers with a copy
of the recording of the one-party intercept call, despite
being ordered to do so by Judge Barbadoro on November 16,
2009 in the Federal Prosecution.
2Rogers asserts additional claims for relief in the instant
§ 2254 petition that are generally not available in § 2254
actions, including a claim for damages to compensate Rogers for
alleged prosecutorial misconduct, and a conditions of
confinement claim seeking injunctive relief, relating to
Rogers’s transfer to the Northern New Hampshire Correctional
Facility in Berlin. This court expresses no opinion regarding
whether such claims for damages and injunctive relief could
proceed in a separate action filed under 42 U.S.C. § 1983.
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2. The trial court’s November 17, 2009 order in the
State Criminal Case denying Rogers access to the recording
of the one-party intercept call violated Rogers’s
Fourteenth Amendment right to due process.
3. Prosecutor Michael Zaino engaged in prosecutorial
misconduct, in violation of Rogers’s Fourteenth Amendment
right to due process: (a) by causing Bobby Pickett to “run
off” to Arkansas; and (b) by causing evidence to “vanish.”
4. Prosecutor Michael Zaino engaged in prosecutorial
misconduct, in violation of Rogers’s Fourteenth Amendment
right to due process, by arguing during sentencing in
Rogers’s state case that soon-to-be dismissed federal
charges should be used to enhance Rogers’s state sentence.
5. BPD Officer Michael Griswold searched Rogers’s
apartment and recovered evidence without a valid, signed
warrant, in violation of Rogers’s Fourth Amendment rights.
6. BPD Officer Griswold made false statements in the
affidavit used to obtain the search warrant, in violation
of Rogers’s Fourteenth Amendment right to due process.
7. Rogers’s burglary conviction is not supported by
the evidence before the jury, in violation of Rogers’s
Fourteenth Amendment right to due process.
8. Rogers did not testify in the State Criminal
Case, but asserts now that he did not enter the hotel
building to take the televisions, such that his continuing
incarceration for a burglary conviction violates Rogers’s
Fourteenth Amendment right to due process.
9. Rogers’s dual convictions for receiving stolen
televisions and for theft are logically inconsistent, in
violation of Rogers’s Fourteenth Amendment right to due
process.
10. Rogers’s counsel during plea negotiations,
Attorney Biletch, did not provide effective assistance of
counsel in the State Criminal Case, in violation of
Rogers’s Sixth Amendment rights, as she did not accept a
plea offer of 3 to 8 years that Rogers had instructed her
to accept with the proviso that she try to reduce the
sentence maximum.
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11. Rogers’s sentence is disproportionate to the
crime and to the sentences of Michael Grenon and others who
perpetrated more heinous crimes, in violation of Rogers’s
Eighth Amendment right not to be subjected to cruel and
unusual punishment.
Discussion
I. Second or Successive Petition
The instant petition is subject to the provisions of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
AEDPA restricts this court’s jurisdiction to consider the merits
of claims asserted in successive petitions for federal habeas
relief. This petition is successive to the prior petition upon
which summary judgment was granted in 2014. If a prisoner
wishes to file a “second or successive” habeas petition, such as
the instant petition, he must follow certain procedures before
this court can consider his claims, pursuant to 28 U.S.C.
§ 2244(b). AEDPA requires approval of the federal court of
appeals before a second or successive habeas corpus petition, as
defined by that statute, may be filed in a federal district
court, even if the petition raises new factual or legal grounds
for relief. 28 U.S.C. § 2244(b)(2); see also Burton v. Stewart,
549 U.S. 147, 152-53 (2007). AEDPA strips the district court of
jurisdiction over such a petition unless and until the federal
court of appeals has decreed that it may go forward. See
Magwood v. Patterson, 561 U.S. 320, 330-31 (2010) (“If an
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application is ‘second or successive,’ the petitioner must
obtain leave from the court of appeals before filing it with the
district court.” (citing 28 U.S.C. § 2244(b)(3)(A)). A habeas
petition filed in the district court without the requisite
authorization from the appellate court is subject to dismissal.
See Magwood, 561 U.S. at 331.
Because Rogers has neither sought nor obtained the required
authorization from the First Circuit to file this successive
petition, this court lacks jurisdiction to consider it.
Accordingly, the district judge should dismiss this petition,
for lack of jurisdiction, as a successive § 2254 petition filed
before Rogers obtained First Circuit authorization, pursuant to
28 U.S.C. § 2244(b)(3)(A).3
III. Certificate of Appealability
The Rules Governing Section 2254 Proceedings (Ҥ 2254
Rules”) require the court to “issue or deny a certificate of
appealability [“COA”] when it enters a final order adverse to
the party.” § 2254 Rule 11(a). Here, the grounds for dismissal
are purely procedural, and not substantive.
When the district court denies a habeas petition on
procedural grounds without reaching the prisoner’s
underlying constitutional claim, a COA should issue when
the prisoner shows, at least, that jurists of reason would
3Rogers is free to apply in the First Circuit for permission
to refile a similar, successive § 2254 petition in this court,
pursuant to 28 U.S.C. § 2244(b)(3)(A) and First Circuit Local
Rule 22.1.
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find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court
was correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Reasonable jurists
would not find it debatable that the instant petition is an
unauthorized “second or successive” petition that is subject to
dismissal. Accordingly, the district judge should decline to
issue a certificate of appealability in this case.
Conclusion
For the foregoing reasons, the district judge should
dismiss the petition for lack of subject matter jurisdiction,
and decline to issue a certificate of appealability. 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 specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. See Garayalde-Rijos
v. Mun. of Carolina, 747 F.3d 15, 21-22 (1st Cir. 2014).
__________________________________
Andrea K. Johnstone
United States Magistrate Judge
December 16, 2016
cc: Scott Rogers, pro se
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