Britton v. Michelle Edmark, Warden, NH State Prison

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Gary Britton
v. Civil No. 15-cv-71-JL
Michelle Edmark, Warden,
New Hampshire State Prison
REPORT AND RECOMMENDATION
Petitioner Gary Britton, proceeding pro se, has filed a
petition for a writ of habeas corpus, pursuant to 28 U.S.C. §
2254, alleging that his present incarceration violates his
federal constitutional rights. Before the undersigned
magistrate judge for a report and recommendation as to
disposition is Respondent’s motion to dismiss (Doc. No. 36),
seeking dismissal of two of the four claims Britton has asserted
in has action.
Background
On May 21, 2013, after a jury trial in the Rockingham
County Superior Court, Britton was convicted of two counts of
aggravated felonious sexual assault (“AFSA”) and two counts of
felonious sexual assault (“FSA”). See State v. Britton, No.
218-2012-CR-00327 (N.H. Super. Ct., Rockingham Cty.) (“Criminal
Case I”). In a separate proceeding, held May 28, 2013, Britton
pled guilty to ten counts of possessing child sexual abuse
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images. See id. In a third proceeding, held July 18, 2013,
Britton was found guilty by the court on one count of being a
felon in possession of a dangerous weapon. See State v.
Britton, No. 218-2111-CR-0902 (N.H. Super. Ct., Rockingham Cty.)
(“Criminal Case II”). Britton is currently serving lengthy
prison sentences imposed pursuant to those convictions. The
facts underlying Britton’s convictions, as relevant to the
instant motion to dismiss, are as follows
On September 22, 2011, Britton was arrested for failing to
register as a sex offender, and on that date, was also evicted
from his apartment in Chester, New Hampshire. When Britton’s
landlords were cleaning out the apartment they had rented to
Britton, they turned on Britton’s computer and found what they
believed to be child pornography. The landlords called the
Chester Police Department and, when the police arrived, the
landlords showed them the images they had seen on Britton’s
computer. The police seized the computer and obtained a warrant
to search its contents. Upon further search of Britton’s
computer, law enforcement officers discovered both child sexual
abuse images and a record of an internet “chat,” in which
Britton wrote about engaging in sexual conduct with daughters
aged eleven and sixteen.1
1At the time Britton wrote the chat post concerning engaging
in sex with daughters aged eleven and sixteen, he had no
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Britton’s chat post led the police to interview J.R., the
daughter of a woman Britton married in 1989. J.R. told the
police about sexual conduct Britton had directed toward her
starting in 1991, when she was nine years old, and continuing
through her thirteenth birthday. Based on J.R.’s statements to
the police, Britton was charged with sexually assaulting J.R.,
as well as for possessing the child sexual abuse images found on
his computer.
At some point, while Britton was in jail awaiting trial on
those charges, he telephoned his daughter, S.B., and instructed
her to go to his apartment and to look for certain items in
certain places. Among the places he directed her to look was
under his bed, where S.B. found a computer hard drive, which was
eventually turned over to the Chester Police. Child sexual
abuse images were ultimately discovered on the hard drive found
under Britton’s bed. Britton was charged with ten counts of
possession of child sexual abuse images with regard to the
images found on the hard drive.
During the litigation of Britton’s criminal case, his trial
counsel filed a motion to suppress the information and images
found on the computer seized from the Chester apartment. See
daughters of those ages. By the time of Britton’s sexual
assault trial, it was understood that the chat post was more in
the realm of fantasy than reportage.
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Feb. 26, 2013 Mot. to Suppress, Criminal Case I (Doc. No. 31-3).
The trial court denied the motion. See May 15, 2013 Order,
Britton, Criminal Case I (Doc. No. 14-5, at 6). Britton never
filed a motion to suppress the evidence found during the search
of the hard drive S.B. found under Britton’s bed.
On May 28, 2013, Briton pled guilty to the ten counts of
possession of child sexual abuse images relating to images found
on the hard drive. Also on that day, the State nol prossed the
charges against Britton alleging possession of child sexual
abuse images found on the computer the police seized from
Britton’s apartment. Accordingly, Britton was not convicted of
possessing any of the child sexual abuse images found on that
computer.
Discussion
Britton has asserted four claims in this action. In her
motion to dismiss, Respondent seeks to dismiss two of those
claims, identified by the court as Claims 3(a) and 3(b), as
follows:
3. Britton’s conviction and sentence were obtained
in violation of his Sixth Amendment right to the
effective assistance of counsel, in that:
a. Britton’s trial counsel failed to argue
that evidence obtained as a result of an illegal
seizure and search of his computer should be
suppressed on the basis that the evidence was
discovered after a warrantless seizure of
Britton’s computer that did not fall under any
exception to the warrant requirement; and
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b. Britton’s trial counsel[ ] did not argue
that the warrantless seizure and search of the
computer did not fall under the “plain view”
exception to the warrant requirement, as the
discovery of incriminating evidence on the
computer was not inadvertent.
Aug. 8, 2018 Order (Doc. No. 29), at 2.
The respondent asserts here that the court lacks
jurisdiction to grant relief on Claims 3(a) and 3(b) because
Britton was convicted of possessing child sexual abuse images
stored on the hard drive that S.B. found, not the computer
police seized from Britton’s apartment. In other words,
Respondent argues that because Claims 3(a) and 3(b) concern
trial counsel’s failure to obtain suppression of evidence on the
seized computer, evidence Britton was not convicted of
possessing, that Britton is not in custody as a result of his
counsel’s purportedly deficient performance in failing to get
that evidence suppressed. Accordingly, Respondent concludes,
Claims 3(a) and 3(b) should be dismissed, because this court
only has jurisdiction to grant habeas relief to those who are
“in custody in violation of the Constitution or laws . . . of
the United States.” 28 U.S.C. § 2254(a).
However, Britton is in custody serving sentences for felony
sexual assault, in addition to sentences for possessing child
sexual abuse images found on the hard drive. By the State’s own
admission, information obtained from the computer seized by the
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police played a role in Britton’s prosecution and conviction for
felony sexual assault. For example, in its objection to
Britton’s state court motion to suppress evidence retrieved from
the seized computer, the State asserted:
While searching that computer, ICAC officers located a
chat discussion in which [Britton] claimed to have
sexually abused his two daughters. Chester Police
used that information to interview [J.R.]. The
information provided in that interview formed the
basis for the pending AFSA case.
Mar. 6, 2013 State’s Obj. to Def.’s Mot. to Suppress, at 1 ¶ 4,
Criminal Case I (Doc. No. 31-4, at 1). And in its closing
argument to the jury at Britton’s trial for AFSA and FSA, the
prosecutor stated:
[T]here was a chat on a computer. And that’s what
leads us into this whole case. That’s what makes
[J.R.] so credible. If you look at the way this all
came about, she was sitting at home, telling no one,
and the police came to her because they found evidence
on his computer.
May 21, 2013 Trial Tr. vol. II, 213:20-24, Criminal Case I.
Therefore, even if nothing the police learned from their search
of the seized computer led to Britton’s convictions for
possessing child sexual abuse images, it is clear that the
results of that search played a significant role in Britton’s
prosecution for sexual assault. Thus, the respondent’s motion
to dismiss, which is premised on the assertion that the results
of the search played no role in Britton’s current incarceration,
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is without merit, and the district judge should deny
Respondent’s motion to dismiss (Doc. No. 36) on that basis.
Conclusion
For the reasons detailed above, the district judge should
deny Respondent’s motion to dismiss (Doc. No. 36). Any
objection 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 a specific written objection to the Report and
Recommendation 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).
SO ORDERED.
______________________________
Andrea K. Johnstone
United States Magistrate Judge
August 8, 2019
cc: Gary Britton, pro se
Elizabeth C. Woodcock, Esq.
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