Graham v. NH, State of

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Melvin C. Graham
v. 	Case No. 23-cv-205-LM-AJ
State of New Hampshire
REPORT AND RECOMMENDATION
Before the court is Melvin C. Graham’s complaint (Doc. No.
1), and the factual allegations in Mr. Graham’s motion to
appoint counsel (Doc. No. 3), which this court construes as an
addendum to the complaint.1 	The matter is before the court for
preliminary review under 28 U.S.C. § 1915A, 28 U.S.C.
§ 1915(e)(2), and LR 4.3(d)(1).
Preliminary Review Standard
The magistrate judge in this court conducts a preliminary
review of prisoner complaints filed in forma pauperis. 	See LR
4.3(d)(1). 	The complaint must contain “sufficient factual
matter, accepted as true, to ‘state a claim to relief.’” 	See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
The magistrate judge may recommend to the district judge that
claims be dismissed if, among other things, the court lacks
jurisdiction, a defendant is immune from the relief sought, or
1The Order issued this date has denied, without prejudice,
Mr. Graham’s motion to appoint counsel (Doc. No. 3).
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the complaint fails to state a claim upon which relief may be
granted. 	See 28 U.S.C. §§ 1915(e)(2), 1915A(b)(1); LR
4.3(d)(1)(A). 	In conducting its preliminary review, the court
construes pro se complaints liberally. 	See Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam).
Background
Since his conviction in 1996 on multiple counts of
felonious and aggravated felonious sexual assault, Mr. Graham
has filed a number of state and federal cases challenging that
conviction. 	Mr. Graham’s prosecution and pre-2012 state post-
conviction proceedings have been summarized as follows:
Graham was convicted in 1996 on three counts of
aggravated felonious sexual assault and one count of
felonious sexual assault on his niece, who was eight years
old at the time of the assaults. 	On appeal, the New
Hampshire Supreme Court [“NHSC”] rejected Graham’s claims
that the evidence was insufficient to convict and that the
trial court improperly excluded a defense witness’s
testimony, but remanded the case for the trial court to
determine whether Graham’s motion for in camera review of
privileged records should have been granted, and if so,
whether the records contained evidence that would require a
new trial. 	[See State v. Graham, 142 N.H. 357, 362-63, 702
A.2d 322, 325-26 (1997) (“Graham I”).] 	The trial court
concluded that the privileged records did not require a new
trial, and the [NHSC] affirmed that decision on October 23,
1998.
Graham moved for a new trial based on claims of
ineffective assistance of trial counsel, which was denied.
He then filed multiple petitions for a writ of habeas
corpus in state court, which were denied. 	His appeals to
the [NHSC] were unsuccessful.
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Graham v. Warden, No. 12-cv-271-JD, 2012 WL 6115700, at *2, 2012
U.S. Dist. LEXIS 174486, at *1-*2 (D.N.H. Dec. 10, 2012). 	Mr.
Graham asserts in this case that he filed another state habeas
petition in Superior Court in 2020; that the Superior Court
denied or dismissed that petition; and that the NHSC declined to
review his discretionary appeal in that matter. 	See Compl.
(Doc. No. 1).
Mr. Graham has filed three petitions for a writ of habeas
corpus in federal court under 28 U.S.C. § 2254. 	See Graham v.
N.H. State Prison Warden, No. 12-cv-271-JD (D.N.H.); Graham v.
N.N.H. Corr. Fac. Warden, No. 04-cv-126-JD (D.N.H.); Graham v.
Coplan, No. 01-cv-00010-SM (D.N.H.). 	All three were dismissed
because of his failure to exhaust state remedies and/or based on
the statute of limitations. 	See Graham v. New Hampshire, No.
17-cv-154-PB, 2017 WL 5176325, at *1-2, 2017 U.S. Dist. LEXIS
184365, at *2-3 (D.N.H. Sept. 12, 2017) (“September 12, 2017
R&R”) (discussing outcome of three § 2254 petitions), R&R
approved, 2018 WL 6834592, 2018 U.S. Dist. LEXIS 217180 (D.N.H.
Dec. 28, 2018) (“2017 civil rights case”).
In 2008 and again in 2017, Mr. Graham filed federal civil
rights actions raising claims that are similar to those here,
making this Mr. Graham’s third federal civil rights case
asserting claims challenging the validity of his state
conviction. 	Those federal cases were dismissed for reasons
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including failure to state a claim, immunity doctrines, the
Rooker-Feldman doctrine, and the absence of subject matter
jurisdiction. 	See Graham v. NHSC, No. 08-cv-315-PB, 2009 WL
485141, 2009 U.S. Dist. LEXIS 138025 (D.N.H. Jan. 30, 2009), R&R
approved, 2009 U.S. Dist. LEXIS 14908, 2009 WL 485141 (D.N.H.
Feb. 24, 2009); see also 2017 civil rights case.
In the Complaint in this case, Mr. Graham names the State
of New Hampshire as the sole defendant. 	He asserts essentially
the same claims challenging his conviction that he asserted in
the 2017 civil rights case, which are summarized in the
September 12, 2017 R&R and need not be repeated here. 	In
addition, in this case, Mr. Graham raises a Fourteenth Amendment
challenge to the state law that allows for a sexual assault
prosecution to be based on the uncorroborated testimony of the
victim, see N.H. Rev. Stat. Ann. 632-A:6(I); and a Fourteenth
Amendment challenge to the NHSC procedural rule that allowed the
NHSC to decline to review his appeals in his post-conviction
proceedings, see NHSC R. 3 (definition of “mandatory appeal”).
Finally, he challenges the validity of the requirement that
convicted sex offenders must complete the New Hampshire
Department of Corrections (“DOC”) Sex Offender Program (“SOP”)
before they are eligible for parole, noting that to participate
in the SOP, he would have to admit his guilt, which he won’t do.
He argues that the SOP completion requirement violates his
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Fourteenth Amendment rights, as it treats him differently in
terms of parole eligibility than prisoners who admit guilt.
Mr. Graham seeks damages and injunctive relief.
Specifically, he asks this court to vacate and remand Graham I
to the NHSC, which would “take the case back to March of 1996,
. . . when the Appeal Process started,” allowing that court to
appoint new counsel to represent him in relitigating his direct
appeal. 	Mr. Graham cites 42 U.S.C. §§ 1983 and 1985, as well as
the wire fraud statute, 18 U.S.C. § 1343, as the bases for his
claims here.
Discussion
I. 	Eleventh Amendment
Mr. Graham names the State as the sole defendant. 	“A
state’s immunity [from suit in federal court] under the Eleventh
Amendment applies whether a private plaintiff’s suit is for
monetary damages or some other type of relief.” 	New Hampshire
v. Ramsey, 366 F.3d 1, 14 (1st Cir. 2004). 	The entire case
should be dismissed on the ground that the State is the sole
defendant, and the State may not be sued here because of the
Eleventh Amendment.
II. 	Claims Challenging Mr. Graham’s Conviction and Sentence
The Heck rule, derived from Heck v. Humphrey, 512 U.S. 477
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(1994), and its progeny, provides an additional ground for
dismissing Mr. Graham’s claims that challenge the validity of
his convictions or sentence. 	The Heck rule requires courts to
dismiss § 1983 claims for damages, injunctive relief, or
declaratory relief, if a favorable judgment on those claims
would necessarily imply the invalidity of the plaintiff’s state
conviction or sentence. 	See Wilkinson v. Dotson, 544 U.S. 74,
81-82 (2005) (“a state prisoner’s § 1983 action is barred
(absent prior invalidation)-- no matter the relief sought
(damages or equitable relief), no matter the target of the
prisoner’s suit (state conduct leading to conviction or internal
prison proceedings)-- if success in that action would
necessarily demonstrate the invalidity of confinement or its
duration”). 	If successful, Mr. Graham’s claims of a conspiracy
among the participants in his state proceeding affecting his
fundamental rights, his Sixth Amendment ineffective assistance
of counsel claims, his claims of due process errors and abuses
in his prosecution and appeal, his challenge to the validity of
RSA § 636-A:6(I), his claims of prosecutorial misconduct and
allegations of unlawfully withheld evidence, and his free-
standing claim of actual innocence, would necessarily impugn the
validity of his conviction or sentence. 	Since no court or other
official process has previously invalidated his conviction or
sentence, the Heck rule bars all of those § 1983 claims.
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Accordingly, the district judge should dismiss those claims on
the basis of Heck.
III. 42 U.S.C. § 1985
Plaintiff cites 42 U.S.C. § 1985 as providing an additional
federal cause of action for his claims. 	To proceed on any
§ 1985 claims, however, the plaintiff must allege facts showing
a racial or class-based discriminatory animus. 	See Perez-
Sanchez v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st Cir. 2008);
Bragg v. Madison, 20 F. App’x 278, 285 (6th Cir. 2001); see also
Kush v. Rutledge, 460 U.S. 719, 726 (1983); Diva’s Inc. v. City
of Bangor, 411 F.3d 30, 38 (1st Cir. 2005). 	Mr. Graham has not
alleged any facts in that regard, and thus, his § 1985 claims
should be dismissed.
IV. 	Federal Wire Fraud Claims
Mr. Graham cites the federal law that establishes the
penalties for wire fraud, 18 U.S.C. § 1343, in seeking relief on
his claims and in arguing that this court has jurisdiction to
grant the equitable relief he seeks. 	Mr. Graham does not have
standing, however, to obtain a decision as to whether any state
agent or participant in his criminal case has perpetrated a
federal crime:
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[A] private citizen, such as [the plaintiff], lacks a
judicially cognizable interest in the federal prosecution
or non-prosecution of another. . . .
Further, section 547 of title 28 states, in relevant part,
that “[e]xcept as otherwise provided by law, each United
States attorney, within his district, shall - (1) prosecute
for all offenses against the United States.” . . . Thus,
[the plaintiff] does not have standing to bring a criminal
action in federal court because no statute authorizes him
to do so.
Akande v. Doe, No. 12-10742-RWZ, 2012 U.S. Dist. LEXIS 65460, at
*3-6, 2012 WL 1658981 (D. Mass. May 10, 2012) (citation
omitted). 	And the federal wire fraud statute does not provide
for a private right of action. 	See Berry v. LoanCity, 489 F.
Supp. 3d 441, 452 (M.D. La. 2020), aff’d, Nos. 20-30670, 21-
30060, 2022 U.S. App. LEXIS 6251, 2022 WL 728969 (5th Cir. Mar.
10, 2022). 	Accordingly, the district judge should dismiss Mr.
Graham’s claims seeking relief on the basis of alleged
violations of 18 U.S.C. § 1343.
V. 	NHSC Procedural Rules Defining “Mandatory Appeals”
NHSC rules specify that certain types of appeals are non-
discretionary, which those rules identify as “mandatory
appeals.” 	NHSC Rule 7(1) allows the NHSC to exercise its
discretion in deciding whether or not to review of the merits of
appeals in cases that are not “mandatory appeals,” and NHSC Rule
3 specifically excludes from that definition appeals from final
decisions in “a post-conviction review proceeding (including
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petitions for writ of habeas corpus and motions for new trial)”
as well as appeals from “collateral challenge[s] to any
conviction or sentence.” 	NHSC R. 3(1)-(2). 	In other words, the
NHSC can exercise its discretion to decline to review the merits
of the trial court’s final decision in state post-conviction
proceedings, and, Mr. Graham alleges, the NHSC has declined to
review any of his post-conviction appeals.
Mr. Graham asserts that as applied to him, the pertinent
NHSC rules regarding discretionary and mandatory appeals have
violated his Fourteenth Amendment rights to due process and
equal protection.
Mr. Graham’s Fourteenth Amendment due process challenge to
those NHSC rules is premised on his claim that he has a due
process right to state appellate review of his claims
challenging the validity of his conviction and sentence. 	That
argument is unavailing.
Although there is undisputedly a well-established
fundamental right of access to the courts, it is equally
well-established that the Fourteenth Amendment does not
require states to afford litigants a right to appellate
review.
D’Angelo v. N.H. Supreme Court, 740 F.3d 802, 805-06 (1st Cir.
2014) (citations omitted) (finding NHSC Rule 3 to be valid as
applied to domestic relations litigant whose appeals were
declined by the NHSC, pursuant to rule specifying that appeals
of decisions in domestic relations cases are not “mandatory
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appeals”). 	Lacking a fundamental right to appellate review in
the state’s highest court, Mr. Graham is unable to demonstrate
that the NHSC’s declination of review in any of his post-
conviction proceedings violated his Fourteenth Amendment right
to due process.
Mr. Graham’s Fourteenth Amendment equal protection
challenge to the same NHSC rules, as applied to him, similarly
fails. 	“Rule 3 does not create classes of litigants, but only
distinguishes among classes of cases arising out of different
types of civil proceedings.” 	Id. 	Put differently, similarly-
situated petitioners in state post-conviction proceedings
seeking appellate review in New Hampshire are all placed in the
same position by Rule 3; namely, their appeals are not mandatory
appeals. 	Id. at 806. 	Moreover, Rule 3’s effect of restricting
the right of appellate review in post-conviction proceedings is
rationally related to the legitimate state interest of promoting
“the proper, speedy, and efficient operation of the state’s
highest court,” by allowing the NHSC to control its docket by
distinguishing among classes of cases. 	Id. at 806-07. 	Mr.
Graham has not alleged any facts suggesting that the court
exercised its discretion with respect to his claims in a manner
that could give rise to an actionable class-of-one equal
protection claim. 	Accordingly, the district judge should
dismiss Mr. Graham’s Fourteenth Amendment challenge to the NHSC
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rules, Rules 3 and 7(1), pursuant to which that court declined
to review the merits of Mr. Graham’s post-conviction appeals.
VI. 	SOP Completion & Parole Eligibility
Mr. Graham challenges the requirement that convicted sex
offenders must complete the SOP before they are eligible for
parole, noting that to participate in the SOP, he would have to
admit his guilt, which he won’t do. 	He argues that the SOP
completion requirement violates his Fourteenth Amendment equal
protection rights, as it treats him differently in terms of
parole eligibility than prisoners who admit guilt.
Essentially the same claim has been litigated in the
District of New Hampshire, and the petitioner in that case
asserting substantially similar arguments did not prevail:
Because . . . there is no right to release on parole, no
fundamental right is implicated when parole is
denied. . . . Accordingly, to trigger the protections of
the Equal Protection Clause, an inmate must demonstrate
that the differential treatment he received in being denied
parole lacked any rational relationship to a valid
penological objective. . . . The APB [N.H. Adult Parole
Board] regulations state that the APB “shall deny” parole
to an inmate where the Board finds that “[c]ontinued
treatment, mental or psychological care, or vocational or
other training within the institution would substantially
improve the inmate’s capacity to lead a law-abiding life
upon release at a future date.” 	N.H. Code Admin. R. Par-
302.01(b). . . . [R]equiring an inmate who has been
convicted of a sex offense to complete the SOP before being
released from incarceration is a rational basis for denying
. . . parole.
Dupont v. N.H. Adult Parole Bd., No. 11-cv-156-SM, 2011 U.S.
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Dist. LEXIS 150902, at *11-12, 2011 WL 6934778, at *4 (D.N.H.
Dec. 19, 2011) (citations omitted), R&R approved, 2012 U.S.
Dist. LEXIS 15085, 2012 WL 405505 (D.N.H. Feb. 8, 2012).
Informed by such apt, thoughtful precedent, the district judge
should similarly dismiss the Fourteenth Amendment SOP claim
asserted here.
Conclusion
For the foregoing reasons, the district judge should
dismiss all claims in this action, pursuant to 28 U.S.C. § 1915A
and 28 U.S.C. § 1915(e)(2). 	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
December 28, 2023
cc: 	Melvin C. Graham, pro se
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