Davis v. NH, State of

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Rick Davis Sr.
v. Civil No. 18-cv-1246-PB
Michelle Edmark, Warden,
New Hampshire State Prison
REPORT AND RECOMMENDATION
Rick Davis Sr., has filed an amended petition for a writ of
habeas corpus (Doc. No. 7) under 28 U.S.C. § 2254, challenging
the validity of his current incarceration, imposed pursuant to
his conviction and sentence in State v. Davis, No. 219-2013-cr-
290 (N.H. Super. Ct., Strafford Cty.). The petition is before
this court for screening under Rule 4 of the Rules Governing
§ 2254 Cases (“§ 2254 Rules”) and LR 4.3(d)(1), to determine if
Davis has stated facially valid claims. Also before the court
are Davis’s filings reporting on his efforts to exhaust his
claims challenging his conviction in the state courts (Doc. Nos.
8, 10, 11), and to use prison grievances to alert prison
officials to an incident of inmate violence, see Doc. No. 9.
§ 2254 Rule 4 Standard
Pursuant to § 2254 Rule 4, a judge is required to examine a
petition for habeas relief, and if “it plainly appears from the
petition and any attached exhibits that the petitioner is not
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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. 849, 856 (1994). In
conducting its preliminary review, the court construes pro se
filings liberally. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam).
Background
Davis is challenging his conviction and (cumulative)
sentence of 101/2 to 35 years, on charges of reckless conduct and
disobeying a police officer stemming from a March 2013 traffic
incident, and related charges of witness tampering, solicitation
of witness tampering, and solicitation of falsifying physical
evidence, arising from incidents occurring in August and
September 2013 and June 2014, while Davis was at the Strafford
County House of Corrections. See State v. Davis, No. 219-2013-
cr-290 (N.H. Super. Ct., Strafford Cty.). Davis’s conviction
was affirmed by the New Hampshire Supreme Court (“NHSC”) on May
17, 2016. See State v. Davis, No. 2015-0248 (N.H. May 17,
2016). Davis did not seek further certiorari review in the
Supreme Court.
Several events occurred in the criminal proceedings that
underlie the claims Davis asserts here. First, Davis’s trial
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counsel, Attorney Carl Swenson, filed a pretrial motion to
determine Davis’s competency. The State did not object. In an
order dated April 9, 2014, the Superior Court found the
defendant to be competent.
The second event forming the basis of Davis’s claims
occurred after the State rested in the criminal trial, when the
Superior Court granted Davis’s motion to dismiss two charges of
witness tampering for insufficiency of the evidence. The
Superior Court instructed the jurors at the close of the trial
not to infer anything from the fact that those two charges,
which had been read to them at the beginning of the case, were
no longer part of the case that would be submitted to the jury.
Attorney Swenson did not refer to those charges in his closing
argument.
Third, at the close of the trial, the Superior Court chose
two jurors to be alternates including “Ms. Boucher,” but then
immediately allowed her to deliberate with the jury and chose
another juror as an alternate, due to a misunderstanding
regarding her name. Although Davis’s counsel and the court
became aware of the misunderstanding after the jury had begun
its deliberations, Davis’s trial counsel did not move for Ms.
Boucher’s recusal or otherwise object to her continuing
participation in deliberations.
Davis asserts in Document Nos. 8, 10, and 11 that he
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pursued post-conviction proceedings without substantial
interruption, beginning with the pro se motion for a new trial
he filed in October 2016, continuing through the present. In
connection with the October 2016 pro se motion for a new trial,
the Superior Court appointed Attorney Caroline Brown to
represent Davis. Attorney Brown filed and litigated a
supplemental motion for a new trial on August 14, 2017, which
the Superior Court denied. See State v. Davis, No. 219-2013-cr-
00290 (N.H. Super. Ct., Strafford Cty., Apr. 12, 2018) (Doc. No.
8-2, at 44 to 60). Attorney Brown also filed the notice of
discretionary appeal of that matter, see Doc. No. 8-2, at 61 to
69, which was declined. See State v. Davis, No. 2018-0324 (N.H.
July 17, 2018).
Davis initiated this action in November 2018 by filing his
“Request for Stay and Abeyance for Petition of Writ of Habeas
Corpus” (Doc. No. 1). In response to the February 15, 2019
Order (Doc. No. 5), directing him to show that his claims are
potentially meritorious, and that the petition is timely, Davis
filed the Amended Petition and addenda (Doc. Nos. 7, 8, 10, 11)
asserting the following claims of violations of his federal
rights:
1. Davis’s right to due process under the Fourteenth
Amendment was violated, in that the Superior Court
instructed the jury at the close of Davis’s case not to
infer anything from the court’s mid-trial dismissal of two
witness tampering charges, where that limiting instruction
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stripped Davis of the ability to have the jury instructed
on the legal definition of witness tampering.
2. The restriction on Davis’s trial counsel’s closing
argument, with respect to evidence relating to the
dismissed charges, violated Davis’s rights to due process
under the Fourteenth Amendment.
3. The Superior Court’s failure to remove Ms. Boucher
from jury deliberations after finding out that she had
originally been identified as an alternate juror violated
Davis’s rights to due process under the Fourteenth
Amendment and Sixth Amendment right to a fair trial.
4. The State engaged in prosecutorial misconduct, in
violation of Davis’s Fourteenth Amendment right to due
process, in that the prosecutor:
a. overcharged Davis; and
b. failed to disclose materials, pursuant to Brady
v. Maryland, 373 U.S. 83 (1963).
5. The failure of Judge Houran to disqualify himself in
Davis’s criminal case for the same undisclosed reason that
Judge Houran disqualified himself in Davis’s civil case
violated Davis’s right to due process and a fair trial
under the Sixth and Fourteenth Amendments.
6. Davis’s conviction was obtained in violation of his
Sixth Amendment right to the effective assistance of
counsel in pretrial proceedings, at trial, and in
sentencing, in that:
a. In connection with Attorney Swenson’s pretrial
motion to determine competency, Attorney Swenson:
i. failed to provide the court and the
competency evaluator with readily available
psychiatric records;
ii. failed to depose or subpoena the competency
evaluator, Dr. Dennis Becotte; and
iii. failed to obtain a second opinion as to
Davis’s competency.
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b. Attorney Swenson failed to move for Judge
Houran’s recusal, after Judge Houran had recused
himself in a civil case involving Davis;
c. Attorney Swenson failed to move to sever the
charges;
d. Attorney Swenson failed to discuss the evidence
relating to the dismissed charges in his closing
argument;
e. Attorney Swenson failed to set forth any theory
of the case or affirmative defense to the charges.
f. Attorney Swenson failed to investigate or move
for Ms. Boucher’s removal from jury deliberations,
despite counsel’s awareness that Ms. Boucher would
have been an alternate juror but for a
misunderstanding; and
g. Attorney Swenson failed to provide effective
representation at sentencing by failing to provide the
court with readily available psychiatric records from
the New Hampshire Department of Corrections in
mitigation of his sentence.
7. Davis’s conviction was obtained in violation of his
Eighth Amendment right to avoid cruel and unusual
punishment and Fourteenth Amendment right to due process in
that it resulted in the conviction and imprisonment of a
person who is actually innocent.
8. Davis’s conviction was obtained in violation of his
Sixth Amendment right to the effective assistance of
counsel, in that Attorney Caroline Brown failed to move the
Superior Court to vacate all of Judge Houran’s orders and
Davis’s conviction, in the post-conviction proceedings
concerning his motion for a new trial.
9. Davis’s Sixth Amendment rights and Fourteenth
Amendment right to due process were violated when the trial
court denied Davis’s motion for a new trial.
In addition, Davis has asserted claims of violations of state
law and claims challenging the conditions of his current
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incarceration, see, e.g., Doc. No. 8, at 2; Doc. No. 9.
§ 2254 Rule 4 Review
I. Claims Not Cognizable in § 2254 Proceedings
A. Prison Conditions Claims
“Federal law opens two main avenues to relief on
complaints related to imprisonment: a petition for
habeas corpus, 28 U.S.C. § 2254, and a complaint under
. . . 42 U.S.C. § 1983. Challenges to the validity of
any confinement or to particulars affecting its
duration are the province of habeas corpus.” An
inmate’s challenge to the circumstances of his
confinement, however, may be brought under § 1983.
Hill v. McDonough, 547 U.S. 573, 579 (2006) (quoting Muhammad v.
Close, 540 U.S. 749, 750 (2004) (per curiam)). Where a habeas
petitioner “seeks relief unrelated to his habeas petition,” the
court generally “does not have jurisdiction to consider such
claims as part of a habeas petition.” Kyricopoulos v. Murphy,
No. 16-cv-12431-IT, 2017 U.S. Dist. LEXIS 46643, at *4, 2017 WL
1190376, at *2 (D. Mass. Mar. 29, 2017). The district judge
should dismiss without prejudice the prison conditions claims
asserted in this case by Davis, regarding the adequacy of his
mental health treatment and an inmate assault, as such claims
are not properly litigated in this habeas action.
B. State Law Claims
Davis has asserted claims of violations of his rights under
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state law. Those claims are not actionable in a petition for a
writ of habeas corpus brought under 28 U.S.C. § 2254. See
Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“‘federal habeas
corpus relief does not lie for errors of state law’” (citation
omitted)). The district judge should dismiss Davis’s state law
claims as they are not cognizable in this action.
C. Claim 8 – Post-Conviction Counsel
In Claim 8 (as numbered above) Davis claims that Attorney
Brown provided ineffective assistance of counsel while
representing him on his motion for a new trial, which was
litigated after the NHSC affirmed Davis’s conviction. That
claim is not cognizable in a section 2254 petition. See 28
U.S.C. § 2254(i) (“[t]he ineffectiveness or incompetence of
counsel during Federal or State collateral post-conviction
proceedings shall not be a ground for relief in a proceeding
arising under section 2254”). Accordingly, the district judge
should dismiss Claim 8, as it fails to state any actionable
ground for relief.
D. Claim 9 – Denial of New Trial Motion
Claim 9 is Davis’s claim that the state court’s denial of
his motion for a new trial violated his Fourteenth Amendment
right to due process and Sixth Amendment right to a fair trial.
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There is no free-standing right to obtain an error-free decision
in a post-conviction proceeding. Simmons v. Yurkovich, 497 F.
App’x 664, 666 (7th Cir. 2012) (“claim that the district court
erroneously dismissed the [habeas] petition is not cognizable as
a due-process violation”). Accordingly, the district judge
should dismiss Claim 9, as it fails to allege a cognizable claim
for relief.
II. Exhaustion
To be eligible for habeas relief, the petitioner must show
that he has exhausted the remedies available in the state courts
for those claims, or that state court remedies are unavailable
or ineffective to protect his 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). In assessing whether a claim has been
exhausted, “‘[t]he appropriate focus . . . centers on the
likelihood that the presentation in state court alerted that
tribunal to the claim’s federal quality and approximate
contours.’” Coningford v. Rhode Island, 640 F.3d 478, 482 (1st
Cir. 2011) (citation omitted). The burden is on the petitioner
to demonstrate exhaustion of state remedies. See id.
Davis has not yet exhausted his state remedies on all of
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the claims in his § 2254 petition. This court’s review of the
record indicates that Davis has exhausted his state remedies as
to Claims 3, 5, 6(b), 6(c), 6(d), 6(f), and 6(g). While the
factual underpinnings of Claims 1 and 2 appear to have been
raised in the state courts, it does not appear that the federal
nature of those claims has been presented in a manner that would
alert the state courts to the existence of federal issues.
Available state remedies as to Claims 4(a), 4(b), 6(a), 6(e),
and 7 (Davis’s free-standing claim of “actual innocence”)1 are
also apparently not yet exhausted.
As the petition includes claims that have been exhausted
and claims that appear to be unexhausted, the petition is
subject to dismissal in its entirety, without prejudice, unless
the petitioner elects to proceed only on the exhausted claims
and foregoes seeking federal habeas relief on the unexhausted
claims. See Rhines v. Weber, 544 U.S. 269, 274-75 (2005). In
the alternative, the court has discretion to deny the petition
on the merits, if none of the claims have any merit, see 28
U.S.C. § 2254(b)(2); or stay the entire petition and hold all of
1A petitioner’s ability to obtain relief on a free-standing
claim of actual innocence under 28 U.S.C. § 2254 is not
established. See McQuiggin v. Perkins, 133 S. Ct. 1924, 1931
(2013) (Supreme Court has “not resolved whether a prisoner may
be entitled to habeas relief based on a freestanding claim of
actual innocence” (citing Herrera v. Collins, 506 U.S. 390, 404–
05 (1993)).
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the claims in abeyance while the petitioner returns to the state
courts to litigate the unexhausted claims, see Rhines, 544 U.S.
at 275. Such a stay may be issued if the petitioner can: “1)
show good cause for failing to present the claims before the
state court in the first instance, and 2) show that his
unexhausted claims are not ‘plainly meritless.’” Wagner v.
Smith, 581 F.3d 410, 419 (6th Cir. 2009) ((quoting Rhines, 544
U.S. at 277)).
It is not apparent that all of Davis’s unexhausted claims
are plainly meritless. Davis has moved this court for a stay to
allow him to exhaust his unexhausted claims. In an Order issued
this date, the court has granted that motion.
III. Statute of Limitations
The February 15, 2019 Order (Doc. No. 5) directed Davis to
demonstrate that his petition is timely. Davis’s subsequent
filings suggest that breaks in his post-conviction litigation
have allowed no more than seven months of the one-year statute
of limitations to run, including two months from August 2016 --
when his conviction became final under 28 U.S.C. § 2244(d)(1)(A)
-- through October 2016, and another five months from July 2018
until November 2018, when he filed this action. Accordingly,
the petition appears to be timely.
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Conclusion
For the foregoing reasons, the district judge should (1)
approve this Report and Recommendation; (2) dismiss Davis’s
claims regarding the conditions of his incarceration, without
prejudice to Davis’s ability to file new civil rights actions
raising those claims; (3) dismiss all of Davis’s claims based on
violations of his rights under state law; and (4) dismiss Claims
8 and 9 (as numbered above).
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 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
August 27, 2019
cc: Rick Davis Sr., pro se
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