Wolusky v. Northern NH Correctional Facility, Warden

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Tristan Wolusky
v. 	Case No. 22-cv-345-SE
Northern New Hampshire
Correctional Facility Warden
REPORT AND RECOMMENDATION
Petitioner, Tristan Wolusky, has filed a petition seeking a
writ of habeas corpus under 28 U.S.C. § 2254 (Doc. No. 1), and
an addendum to his petition (Doc. No. 2), challenging his 2015
first degree murder conviction in the Strafford County Superior
Court. 	The petition is before the court for preliminary review
to determine if the petitioner has stated any claims that are
not meritless on the face of the petition. 	See 28 U.S.C.
§ 2243; Rule 4 of the Rules Governing § 2254 Cases (“§ 2254
Rules”); LR 4.3(d)(4)(A).
§ 2254 Rule 4 Standard
Pursuant to § 2254 Rule 4, a federal judge must screen
§ 2254 petitions 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.; see also 28 U.S.C. § 2243; McFarland v. Scott,
512 U.S. 849, 856 (1994) (courts “are authorized to dismiss
summarily any habeas petition that appears legally insufficient
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on its face”). 	In conducting its § 2254 Rule 4 review, the
court construes pro se filings liberally. 	See Dutil v. Murphy,
550 F.3d 154, 158 (1st Cir. 2008).
Background
Mr. Wolusky is a New Hampshire state prisoner incarcerated
at the Northern New Hampshire Correctional Facility serving a
sentence of life without the possibility of parole, imposed
after a jury convicted him of conspiracy to commit robbery,
falsifying physical evidence, hindering apprehension or
prosecution, tampering with witnesses and informants, conspiracy
to tamper with witnesses and informants, and first-degree murder
as a principal or an accomplice. 	See State v. Wolusky, No. 219-
2014-cr-384 (N.H. Super. Ct., Strafford Cty.) (“Criminal Case”).
In charging Mr. Wolusky with first degree murder,
[t]he State alleged that [Mr. Wolusky], acting in
concert with Zachary Pinette and/or Michael Tatum,
knowingly caused the death of the victim before,
after, or while engaged in the commission of a robbery
while armed with a knife, and that the victim’s death
was caused by the knife. 	[Mr.] Pinette and [Mr.]
Tatum pled guilty to multiple charges, including
second degree murder, and agreed to testify for the
State at [Mr. Wolusky’s] trial.
State v. Wolusky, Nos. 2016-0037, 2019-0589, 2021 N.H. LEXIS
141, at *4-6, 2021 WL 4197719, at *1 (N.H. Sept. 15, 2021) (Doc.
No. 1-1).
At trial, Mr. Wolusky testified in his defense. 	He
testified that he neither stabbed [the victim], nor
held him down while he was stabbed to death by Mr.
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Pinette and Mr. Tatum. . . . 	Mr. Wolusky testified
that once he and his co-defendants were at [the
victim’s] home and [the victim] was at the end of his
driveway, Mr. Wolusky grabbed him in order to execute
the planned robbery.
. . . .
Mr. Wolusky testified that, to his surprise, Mr.
Pinette and Mr. Tatum began to attack [the
victim]. . . . 	Mr. Wolusky testified that he jumped
off of [the victim] when the attack began . . . . The
autopsy report notes that [the victim] suffered eleven
stab wounds to the back and three stab wounds to the
back of his right arm. . . . 	There is no place on
[the victim’s] back where he was not stabbed. . . .
Sept. 5, 2019 Order on Mot. for New Trial (“New Trial Order”),
Criminal Case (Doc. No. 1-3, at 3, 5).
Following trial, [Mr. Wolusky] filed motions to set
aside the verdict as against the weight of the
evidence and because the State had offered allegedly
perjured testimony. . . .
The trial court denied the motions. 	The court ruled
that, even assuming that a reasonable jury would not
have found substantial portions of [Mr.] Tatum’s
testimony to be credible, and even if the jury had
rejected certain portions of [Mr.] Pinette’s
testimony, “the inconsistencies and contradictions
highlighted by [Mr. Wolusky]” did not “so undermine
the jury’s weighing of the evidence that the jury’s
guilty verdict . . . was against the weight of the
evidence.” 	In addition, the court found that the
State had not suborned perjury, ruling that [Mr.
Wolusky’s] arguments regarding “perjured” testimony
went “to the weight and credibility of [Mr. Pinette’s]
testimony.”
[Mr. Wolusky] also filed a motion for a new trial
based on ineffective assistance of trial
counsel. . . . 	[T]he court denied the motion, ruling
that the performance of [Mr. Wolusky’s] trial counsel
was not constitutionally deficient, but was, rather,
“constitutionally effective.” 	The court found that,
notwithstanding the verdict, defense counsel had
effectively attacked [Mr.] Pinette’s and [Mr.] Tatum’s
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credibility and successfully highlighted many
contradictions between their testimony and the
physical evidence. 	The court concluded that it had
“no basis upon which it could determine that trial
counsel’s trial performance on behalf of [Mr. Wolusky]
‘failed to function as the counsel the State
Constitution guarantees.’”
Wolusky, 2021 N.H. LEXIS 141, at *4-6, 2021 WL 4197719, at *2
(citations omitted). 	The trial judge sentenced Mr. Wolusky to
life without parole and denied his motions to set aside the
verdict and for a new trial. 	The New Hampshire Supreme Court
(“NHSC”), which had stayed Mr. Wolusky’s direct appeal, lifted
the stay, affirmed Mr. Wolusky’s convictions, and also affirmed
the trial court’s orders denying Mr. Wolusky’s motions to set
aside the verdict and for a new trial. 	See id.
This court identifies the following claims asserted in the
§ 2254 petition and its addendum (Doc. Nos. 1, 2):
1. 	Mr. Wolusky’s first degree murder conviction
violated his Fourteenth Amendment right to due process, in
that:
a. 	No rational trier of fact could have found
him guilty of first-degree murder beyond a reasonable
doubt; and
b. 	His conviction was against the weight of the
evidence.
2. 	Mr. Wolusky’s first degree murder conviction
violated his Sixth and Fourteenth Amendment right to the
effective assistance of counsel, in that his trial counsel
did not re-call the medical examiner who performed the
autopsy on the victim, to refute the testimony used to
convict Mr. Wolusky, and to corroborate Mr. Wolusky’s claim
of innocence.
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Discussion
I. 	Prerequisites to Habeas Relief
A. 	Federal Claims
A federal court may grant habeas corpus relief to a person
in custody pursuant to a state court judgment only on the ground
that she or he is in custody in violation of the Constitution or
laws or treaties of the United States. 	28 U.S.C. § 2254(a). 	A
writ of habeas corpus will not issue to correct any error of
state law that does not violate the petitioner’s federal rights.
See id.; Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“federal
habeas corpus relief does not lie for errors of state law”
(citation and internal quotation marks omitted)).
B. 	Exhaustion
To be eligible for relief under § 2254, the petitioner must
show that he has exhausted the remedies available in the state
courts for each of his federal claims, or that state court
remedies are unavailable or ineffective to protect his federal
rights. 	See 28 U.S.C. § 2254(b)(1). 	A petitioner’s state court
remedies in New Hampshire are exhausted when the NHSC has had an
opportunity to rule on the claims. 	See Lanigan v. Maloney, 853
F.2d 40, 42 (1st Cir. 1988). 	The burden is on the petitioner to
demonstrate exhaustion of state remedies. 	See id.
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II. 	Fourteenth Amendment Sufficiency of Evidence (Claim 1(a))
Construed liberally, the petition’s challenge to the
evidentiary basis of Mr. Wolusky’s conviction pleads a
Fourteenth Amendment sufficiency-of-the-evidence claim.
[I]n a challenge to a state criminal conviction
brought under 28 U.S.C. § 2254 . . . the applicant is
entitled to habeas corpus relief if it is found that
upon the record evidence adduced at the trial no
rational trier of fact could have found proof of guilt
beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 324 (1979) (footnote
omitted). 	The court identifies that claim here as Claim 1(a)
and concludes that Mr. Wolusky effectively exhausted his state
court remedies on Claim 1(a) by litigating his weight-of-the-
evidence claim in the state courts.
Lacking pertinent parts of the state court record, this
court cannot conclude at this time that Mr. Wolusky’s Fourteenth
Amendment sufficiency-of-the-evidence claim is meritless.
Accordingly, the court directs the respondent to file an answer
to Claim 1(a) in the Service Order issued this date.
III. Weight of the Evidence (Claim 1(b))
Mr. Wolusky contends that his first-degree murder
conviction was against the weight of the evidence. 	That type of
claim is not cognizable in a § 2254 petition. 	See Leachman v.
Winn, No. 18-1080, 2018 U.S. App. LEXIS 37824, at *5, 2018 WL
11303580, at *2 (6th Cir. July 2, 2018) (“[a] manifest-weight-
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of-the-evidence claim is a state-law claim and, thus, not
cognizable on federal habeas review”); Young v. Kemp, 760 F.2d
1097, 1105 (11th Cir. 1985) (“[a] federal habeas court has no
power to grant habeas corpus relief because it finds that the
state conviction is against the ‘weight’ of the evidence”);
Walker v. Brittain, No. 18-3705, 2020 U.S. Dist. LEXIS 149515,
at *27, 2020 WL 4815874, at *10 (E.D. Pa. Aug. 19, 2020) (“a
challenge to the weight of the evidence produced at trial is not
cognizable in a federal habeas proceeding” (footnote omitted)
(citing cases)). 	Accordingly, the district judge should dismiss
Claim 1(b), to the extent it is a state law claim.
IV. 	Sixth Amendment Ineffective Assistance of Counsel (Claim 2)
In Claim 2, Mr. Wolusky asserts a Sixth Amendment
ineffective assistance of counsel claim. 	In particular, Mr.
Wolusky takes issue with his trial counsel’s failure to re-call
the medical examiner to explain how the autopsy findings belied
Mr. Pinette’s testimony, including whether it was possible that
Mr. Wolusky had been sitting on top of the victim while the
victim was stabbed and slashed. 	Mr. Wolusky exhausted his state
remedies on this claim in the proceedings on his motion for a
new trial.
Lacking pertinent parts of the state court record, this
court cannot conclude that the Sixth Amendment ineffective
assistance of counsel claim (Claim 2) is meritless.
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Accordingly, in the Order this date, the court has directed the
respondent to file an answer to Claim 2.
Conclusion
For the foregoing reasons, the district judge should deny
relief on Claim 1(b) and dismiss Claim 1(b) from the petition.
Any objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. 	The objection
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 in the written objections “‘are subject to review in the
district court,’” and any issues “‘not preserved by such
objection are precluded on appeal.’” 	Id. (citations omitted).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
November 14, 2022
cc: 	Tristan Wolusky, pro se
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