Jaroma v. Cunningham CV-94-601-JD 11/14/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

A1 Jaroma

v. Civil No. 94-601-JD

Cunningham, Warden New Hampshire State Prison

O R D E R

A1 Jaroma, proceeding pro se and in forma pauperis,

petitions for a writ of habeas corpus attacking the

constitutionality of his state court conviction for burglary.

The state, on behalf of the warden, has moved for summary

judgment, relying in large part on the decisions of the state

courts in Jaroma's direct appeal and state habeas corpus

proceedings.

BACKGROUND1

Jaroma was convicted in June 1990 on one count of burglary

and sentenced to serve two and one-half to five years at the New

1The court accepts the facts determined by the New Hampshire Supreme Court and reported in State v. Jaroma,

(1993), as they are undisputed. See

(d) (1994) . Hampshire State Prison.2 The burglary charge arose from a stop

and arrest after an Allenstown police officer saw Jaroma drive

out of the parking lot of several businesses, including the

Allenstown Convenience Store, at 4:30 a.m., when all of the

businesses were closed. When Jaroma could not produce a vehicle

registration and the officer identified him from his drivers'

license as a known burglar, the officer radioed police to check

the nearby businesses. Jaroma then offered different versions of

his whereabouts during the evening and the officer concluded that

he was lying. The officer arrested Jaroma for loitering and

prowling in violation of N.H. Rev. Stat. Ann. ("RSA") § 644:6.

After Jaroma and the officer arrived at the police station, the

officer learned that the Allenstown Convenience Store had been

burglarized and obtained a warrant to search Jaroma's car.

Jaroma was first charged with violating the loitering statute,

and later with burglary of the convenience store.

The Hooksett District Court dismissed the loitering charge

against Jaroma after finding that the stop and arrest was invalid

because the officer had no reasonable basis for stopping Jaroma.

2Jaroma has completed his sentence for this conviction but is now serving a consecutive sentence and remains in prison. The court previously found unavailing the state's argument that dismissal is warranted because Jaroma is no longer in custody for the conviction he is challenging. See Order, June 8, 1995 (citing Garlotte v. Fordice, 115 S. C t . 1948 (1995)).

2 Before his trial on the burglary charge in the superior court,

Jaroma's counsel moved to suppress the evidence discovered in his

car, again challenging the validity of the stop and arrest.

However, the superior court held that when the officer stopped

Jaroma, he had a sufficient basis to make an investigatory stop,

and that he then had probable cause to arrest Jaroma under the

loitering statute. The superior court denied the motion to

suppress and Jaroma was later convicted on the burglary charge.

Following his conviction, Jaroma moved for a new trial, arguing

the ineffective assistance of trial counsel on the suppression

issue. The superior court denied his motion on April 2, 1993.

Thereafter, he separately appealed his conviction and the court's

denial of his motion for a new trial.3

In his appeal challenging his conviction, Jaroma argued that

the trial court erred in denying his motions to suppress; in

admitting evidence seized as a result of a constitutionally

infirm search of his car; and in denying him his rights to an

impartial jury, due process, and a fair trial by failing to ask

all submitted voir dire guestions and selecting the jury

foreperson. The New Hampshire Supreme Court held that Jaroma had

3Jaroma was represented by two different lawyers during the preparation and trial on the burglary charge. Following his conviction, two other lawyers were appointed to represent him in moving for a new trial and on appeal.

3 not preserved for appeal his argument that the doctrine of

collateral estoppel barred the prosecution from relitigating the

legality of the stop and arrest in the superior court, and

affirmed the superior court on the other issues raised on appeal.

It later summarily affirmed the superior court's denial of

Jaroma's motions for a new trial.

Jaroma then petitioned pro se for a writ of habeas corpus in

state court, alleging that the police used false testimony to

"set up" his burglary conviction and that both the prosecutor and

his own counsel knew of the false testimony but did nothing. He

again argued that the district court's decision on the invalidity

of the stop and arrest should have barred relitigation of the

issue in superior court. He challenged the legality of the

search of his car, alleging that the trunk was searched once

before the police obtained a warrant and that the warrant they

obtained was invalid, and argued ineffective assistance of

counsel based on his lawyer's failure to file a motion to

suppress on this ground. The superior court denied the petition

in an order dated February 7, 1994, and the supreme court

declined the appeal. Jaroma then filed his habeas corpus

petition in this court.

4 DISCUSSION

In habeas corpus proceedings, as in other civil actions,4

summary judgment is only appropriate if the facts taken in the

light most favorable to the nonmoving party show that no genuine

issue of material fact exists and that the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);

Guzman-Rivera v. Rivera-Cruz,

(1st Cir. 1994) . On

issues that the nonmoving party must prove at trial, the moving

party initially need only allege the lack of evidence to support

the nonmoving party's case. Celotex Corp. v. Catrett,

(1986). The nonmoving party cannot rely on the

pleadings alone to oppose summary judgment, but must come forward

with properly supported facts to demonstrate a genuine factual

dispute for trial.

(1986) . When the facts are

undisputed, to prevail the moving party must show that it is

entitled to judgment as a matter of law. Desmond v. Varrasso (In

re Varrasso),

(1st Cir. 1994).

Because Jaroma is a pro se petitioner, the court construes

his pleadings broadly but, nevertheless, reguires him to meet the

summary judgment standard. See, e.g.. United States v. Michaud,

(1st Cir. 1991). Therefore, the court considers

4 Fed. R. Civ. P. 81(a)(2); see also Williams v. Scott,

(5th Cir. 1994), cert, denied, 115 S. C t . 959 (1995) .

5 the state's motion for summary judgment and Jaroma's response in

light of the applicable summary judgment standard and also

restates Jaroma's claims where necessary.

Claims in Support of Habeas Relief

Jaroma's petition for a writ of habeas corpus is divided

into eight separately numbered and captioned issues. These are:

"Issue I, Res Judicata-Collateral Estoppel Doctrine"; "Issue II,

Exculpatory Evidence, Appointment of Counsel and Services Other

Than Counsel"; "Issue III, Illegal Search and Seizure"; "Issue

IV, Prosecutorial Misconduct"; "Issue V, Ineffective Assistance

of Counsel"; Issue VI, Constitutionality of New Hampshire's

Statute R.S.A. 644:6 Loitering and Prowling"; "Issue VII, Voir

Dire of the Jury Panel"; and "Issue VIII, Due Process and

Impartial Jury Selection." However, many of the allegations are

repeated in different issues and the titles do not accurately

reflect the claims made, causing some confusion about the grounds

raised for habeas relief.

Despite its organization, captions, and repetitious

allegations, in essence the petition presents six grounds for

habeas relief: (1) violation of due process by allowing the

state to relitigate the validity of the stop; (2) ineffective

assistance of counsel based on several alleged deficiencies; (3)

6 prosecutorial misconduct; (4) invalidity of the search of the car

based on the unconstitutionality of the New Hampshire loitering

statute; (5) violation of due process and the right to a fair

trial by the trial court's decision not to give all reguested

voir dire guestions, and (6) violation of due process and the

right to a fair trial by the court's designation of a jury

foreperson before choosing alternate jurors. The court addresses

each claim seriatim.

A. Due Process: Relitigating the Validity of the Stop

Jaroma argues that the superior court erred by allowing the

state to relitigate the lawfulness of the stop in superior court

after the district court had determined that the stop was

unlawful. He suggests that this claim is based upon the doctrine

of collateral estoppel. However, in this court, his claim is

more properly characterized as a due process violation.5 The

state contends that Jaroma is procedurally barred from raising

this issue in a federal habeas corpus petition.

5Jaroma need not litigate his due process claim in state court before raising it here because the state courts would decline to consider the claim for the same reason that the New Hampshire Supreme Court declined to consider Jaroma's collateral estoppel claim. Under these circumstances, express exhaustion is not reguired. See Coleman v. Thompson,

(1991) ("A habeas petitioner who has defaulted his federal claims in state court meets the technical reguirements for exhaustion . . . .") .

7 A procedural default in state court based upon an

independent and adequate state ground will bar habeas corpus

relief in federal court unless the petitioner can show either

cause for the default and prejudice resulting from an alleged

violation of federal law, or that a "fundamental miscarriage of

justice" will result if the claim is not considered. Coleman,

. Jaroma argues that his failure to object to the

relitigation of the issue in state court was caused by his

counsel's ineffective assistance. In some circumstances,

ineffective assistance of counsel can be sufficient cause to

excuse a procedural default. See Murray v. Carrier,

(1986). However, "the mere fact that counsel failed to

recognize the factual or legal basis for a claim, or failed to

raise the claim despite recognizing it, does not constitute cause

for a procedural default."

Jaroma's claim is based on the premise that a state district

court can issue findings that are binding in a subsequent felony

trial in superior court. In 1981, the New Hampshire Supreme

Court expressly rejected this premise on the ground that it would

undermine the exclusive jurisdiction of the superior court over

the ultimate resolution of felony cases. See State v. Stevens,

(1981). Accordingly, Jaroma's trial counsel

could not be considered ineffective for failing to raise an issue that was bound to fail. The court grants summary judgment on

this issue.

B. Ineffective Assistance of Counsel

Jaroma alleges that his trial and post-trial counsel were

ineffective for a number of reasons. Specifically, he contends

that counsel failed to: (1) investigate his claim; (2) make

effective use of exculpatory evidence; (3) inform the jury that

certain incriminating evidence was false; (4) challenge the

validity of the search warrant effectively; and (5) raise and

argue certain issues properly in post-trial proceedings. The

state argues that Jaroma procedurally defaulted on several of his

ineffective assistance claims and denies that counsel was

ineffective. However, the state has made no attempt to develop

its arguments other than to cite without explanation to several

state court orders. Under these circumstances, the court

declines to address its argument.6

The state's entire argument on the ineffective assistance issue is as follows: Issue III and Issue V of the Petition raise allegations of ineffective assistance of counsel. In a number of pleadings and for a variety of reasons, the petitioner has raised allegations that all of his court appointed counsel were ineffective. All of these claims have been rejected both by the New Hampshire Supreme Court and the Superior Court. See State v. Jaroma,

; Order, dated April 2, 1993; Order dated February 7, 1994. For the reasons set forth in those C. Prosecutorial Misconduct

Jaroma alleges the prosecutor knew that his case against

Jaroma was based on false testimony and allowed a police witness

to give false testimony at Jaroma's trial. The state moves for

summary judgment on this issue on the ground that Jaroma can

produce no evidence to support his allegations. In response,

Jaroma explains that the prosecutor was aware of the contents of

a sealed file pertaining to the police witness and knew that it

undermined his credibility.7 In his petition, he also

acknowledges that the prosecutor informed the court of the

witness's credibility problem during trial.

Jaroma has produced no evidence to show that perjured

testimony was given during trial or that the prosecutor withheld

exculpatory evidence from the defense. Although he makes general

references to the trial transcript in support of his claims of

perjury, these references are insufficient to establish a dispute

of material fact. Jaroma has not met his burden in opposing

decisions, the Court should also reject the petitioner's ineffectiveness allegations.

7To the extent Jaroma argues that the prosecutor withheld exculpatory evidence from him (or his defense) , the facts do not support his claim. The only exculpatory evidence he has discussed is the sealed file of the police officer witness, which was provided to Jaroma's trial counsel. See Superior Court Order dated February 7, 1994, at *4. Jaroma acknowledges as much in his allegations of ineffective assistance of counsel in Issue V.

10 summary judgment on this issue, and the court grants summary

judgment on the issue of prosecutorial misconduct.

D. Admissibility of Evidence Seized from Jaroma's Car

Jaroma alleges that his arrest under New Hampshire's

loitering statute, RSA § 644:6, was invalid and that the evidence

discovered in the subseguent search of his car should have been

suppressed because the statute is unconstitutionally vague and

overbroad and violates the right to travel. The state moves for

summary judgment on this issue, relying entirely on the analysis

of the issue in the state's brief to the New Hampshire Supreme

Court on Jaroma's direct appeal and on the supreme court's

decision. In its brief for the appeal, the state primarily

addressed the constitutionality of the statute under state law,

and also argued that the court should adopt a good-faith

exception to the exclusionary rule that would protect the police

conduct even if the statute were deemed invalid. The supreme

court addressed the issue only under state law "[b]ecause the

federal law offers no greater protections to be free from

unreasonable searches and seizures," and held that it did not

need not to address the constitutionality of the statute because

the officer acted in good-faith reliance on the validity of the

statute and that his conduct did not violate the New Hampshire

11 Constitution. Jaroma,

; see also State v.

Canelo,

(N.H. 1995) (dissenting opinion).

Thus, the supreme court's analysis does not support the state's

motion for summary judgment in a federal habeas proceeding.

In Michigan v. DeFillippo, the United States Supreme Court

held that an arrest based on probable cause and made in good-

faith reliance on the validity of a "stop and identify" ordinance

was not rendered invalid, reguiring suppression of evidence from

a search incident to the arrest, when the ordinance was sub-

seguently declared unconstitutional.

(1979).

Thus, federal law recognizes an exception to the exclusionary

rule when an arrest is based on probable cause under a

presumptively valid law.

. Determination of

probable cause is based on what a reasonably prudent and cautious

person would believe under the circumstances.

.8

The New Hampshire loitering statute is not "so grossly and

8Jaroma contends that he was arrested as a pretext to allow the police to manufacture evidence in order to charge him with another crime. However, a stop or arrest, alleged to be merely pretextual, does not violate the Fourth Amendment "as long as a reasonable officer in the same circumstances could have stopped the car for the suspected . . . violation." United States v. Whren,

(D.C. Cir. 1995) (discussing related rules in other circuits), petition for cert, filed (Aug. 31, 1995); accord United States v. Willis,

(7th Cir. 1995). Thus, the evaluation of the justification for an allegedly pretextual arrest is an objective analysis that is not dependent on the subjective state of mind of the arresting officer.

12 flagrantly unconstitutional that any person of reasonable

prudence would be bound to see its flaws," id. at 38, and had not

been declared unconstitutional at the time of the arrest. Thus,

the statute was presumptively valid. Jaroma does not contest the

existence of probable cause to arrest him under the loitering

statute but argues that the arrest lacked probable cause only

because of the unconstitutionality of the statute. Therefore,

even if the New Hampshire loitering statute were declared

unconstitutional, Jaroma's arrest was based on probable cause

that he had violated the statute and would be valid under the

good-faith exception announced in DeFillippo. Summary judgment

is granted as to this issue.9

E. Voir Dire

Jaroma contends that the trial court impaired his right to

due process and a fair trial by refusing to give two of his three

reguested voir dire guestions. Again, the state relies entirely

on its brief on appeal, which presented only state law, and the

9Alternatively, the court could grant summary judgment because Jaroma litigated this issue thoroughly in state court and "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell,

(1976) .

13 supreme court's decision, which considered the issue only under

state law. Because the state has provided no analysis of the

voir dire issue under federal law, the court declines to consider

its argument.

F. Selection of the Jury Foreperson

Jaroma also challenges as a Sixth Amendment violation the

trial court's non-random selection of the jury foreperson and its

exemption of that person from being designated an alternate. He

argues that the selection process denied him a fair trial in

violation of the Sixth Amendment by creating a "super juror"

designated by the court who could not be exempted from service as

an alternate. Jaroma does not challenge the selection of the

jury panel as a whole from which the foreperson was designated.

Absent circumstances showing bias or imbuing the foreperson

with extraordinary authority, appointment of the jury foreperson

by the judge before designating alternates does not violate

either due process or the defendant's right to a fair trial. See

Hobby v. United States,

(1984) (holding that as

long as grand jury, as a whole, was properly constituted,

selection of one member as foreperson does not taint the

process); United States v. Cannon,

(1st Cir.)

("no valid reason to prohibit a trial judge from appointing the

14 foreperson" absent evidence in the record of prejudice), cert.

denied,

(1990); United States v. Machor,

(1st Cir. 1989), cert, denied,

, and cert.

denied sub nom. Brito-Meiia v. United States,

(1990). Because Jaroma has not carried his burden of adducing

evidence of a constitutional violation caused by the court's

selection of the jury foreperson, summary judgment in favor of

the state is appropriate on this issue.

Conclusion

The state's motion for summary judgment (document no. 26) is

granted as to the petitioner's claims based on (1) the failure of

superior court to apply the doctrine of collateral estoppel at

the suppression hearing; (2) prosecutorial misconduct; (3) the

inadmissibility of evidence seized during the search of Jaroma's

automobile; and (4) the court's selection of jury foreperson.

The state shall have until December 1, 1995, to file a

supplemental memorandum of law, based on federal law, in support

of its motion for summary judgment on the issues of ineffective

15 assistance of counsel and improper voir dire. The petitioner

shall have until December 22, 1995, to file a reply.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge November 14, 1995

cc: A1 Jaroma, pro se John C. Kissinger, Esguire

16