Pitts v. Warden CV-95-294-SD 12/18/96

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Shayne Pitts

v. Civil No. 95-294-SD

Michael Cunningham, Warden, New Hampshire State Prison

O R D E R

Following his conviction of second-degree murder in a state

court, Shayne Pitts here seeks habeas corpus relief. Document 3.

At this juncture, the issues before the court arise from

petitioner's objections to a Report and Recommendation (R & R) of

the magistrate judge. Document 12.1

The ultimate recommendation of the R & R was that the habeas

corpus petition be denied. Document 11. Concurring with such

recommendation, the court overrules petitioner's objections and

Petitioner has captioned his pleading as "Petitioner's Objection and Motion for De Novo Review." As the relevant statute reguires, this court has conducted a de novo review of the record.

(b)(1)(C); Elmendorf Grafica, Inc. v. D.S. America (East), Inc.,

(1st Cir. 1995). Such review has included not only all pleadings and findings of all courts involved, but also review of the trial transcripts and the transcripts of the evidentiary hearing held on petitioner's motion for new trial. accepts the R & R.2

1. Background

Petitioner's conviction was had for the slaying of his

former girlfriend. Melody Derosia-Waters. The jury acguitted him

on the charge of first-degree murder and assessed his guilt of

the lesser included offense.

Relatives of the victim reported her missing in January

1991. For several months thereafter, Pitts adhered to the story

that he had last seen Derosia-Waters when he had dropped her off

at the Manchester airport on January 10, 1991.

The body of the victim was discovered in a root cellar on

April 12, 1991. Those premises were owned by petitioner's

mother, and at relevant times had been occupied by the

petitioner. Pitts then advised his relatives and friends that he

2In conducting its review of this matter, the court has followed the position taken by the magistrate judge that the habeas corpus rules to be applied are those in effect before the more stringent reguirements imposed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA),

Stat. 1214. See Boria v. Keane,

(2d Cir. 1996). In following this course, the court has reviewed and finds distinguishable the recent decision of the First Circuit in Roister v. Immigration & Naturalization Serv., No. 96-1194 (1st Cir. Dec. 4, 1996) (holding that § 440(a) of AEDPA, the effect of which is the withdrawal of certain jurisdiction from the courts of appeals, was effective as of its enactment on April 24, 1996, because it affected only the issue of jurisdiction and did not deprive the petitioner of his rights to habeas corpus).

2 had shot and killed Derosia-Waters while under the hallucinogenic

influence of LSD.3

Petitioner's mother sent Pitts to her attorney. Pitts

advised the attorney of his intoxication defense. A decision was

made that petitioner should "come clean" and prepare a statement

detailing this defense. Several hours and drafts went into the

completion of this statement which, together with petitioner's

handgun, was turned over to the police.4 Petitioner was then

arrested and charged with first-degree murder.

Petitioner's mother arranged for payment of the attorney's

fees and costs. Some three weeks after delivery of the statement

and weapon to the authorities, the attorney, petitioner, and the

representative of a publisher entered into a media contract.

That contract provided that fifty percent of any net income

generated by publication of petitioner's story would be given to

the attorney to defray the fees and costs of petitioner's

defense.5

3Pitts claimed that the victim, without his knowledge, had somehow dosed his food and/or water with LSD.

4From telephonic contact with the police, trial counsel had learned that they were knowledgeable that petitioner had owned a .32 caliber handgun and that they were in the process of preparing arrest and search warrants directed to plaintiff and the premises of his mother.

5The media contract also provided that the publisher would receive ten percent of the gross profits, while the remaining

3 Any media interest in the case quickly dissolved, and no

publication was generated by this contract. Following his

conviction, petitioner retained new counsel and moved for a new

trial.

The grounds for new trial were based on allegations that

petitioner's attorney had provided ineffective assistance in his

defense. Following an evidentiary hearing, the motion was

denied, and the ruling of the trial court was affirmed on direct

appeal. State v. Pitts,

,

(1993).

Petitioner now seeks collateral relief in this court.

2. Discussion

As of this writing , some seven judicial officers have

previously reviewed and ruled upon the claims of petitioner. As

the eighth to undertake such task, I write sparingly, in light of

this voluminous record.

Generally, a claim of ineffective assistance of counsel

requires a petitioner to prove (1) that counsel fell short of the

applicable performance standard and (2) that prejudice resulted.

Strickland v. Washington,

(1984); Arqencourt v.

United States,

(1st Cir. 1996). The test of

fifty percent of the net profits was to be paid to petitioner or a nonprofit foundation to be established by petitioner.

4 performance is grounded on what counsel knew, or should have

known, at the time his tactical choices were made and

implemented.

Proof of prejudice requires a showing not only

that counsel was deficient but also that his errors "were so

serious as to deprive the defendant of a fair trial, a trial

whose result is reliable."

I turn first to the claim that constitutional error attaches

to trial counsel's advice to Pitts that he give and verify his

statement to the police. Despite petitioner's contention to the

contrary, it is clear that, as the New Hampshire Supreme Court

found, such action neither relieved the state of its burden of

proof nor deprived petitioner of his right to a bifurcated

trial.6 State v.

,

.

Nor does the record support the claim that, at any time

prior to trial, the state considered the possibility of plea

negotiations that might result in a sentence lower than that

imposed on petitioner. Again, from my independent review of the

trial record, I concur with the finding that "in light of the

other evidence the state possessed, the confession was not

essential to the state's case."

Moreover, the minor

6Trial counsel testified at the hearing on the new trial motion that he had discussed fully with petitioner his right to a bifurcated trial and that a decision had then been made that no such trial would be sought.

5 inconsistencies the state raised in the course of its use of the

statement in impeachment did not weaken petitioner's credibility,

as demonstrated by the ultimate verdict.

Petitioner challenges the failure of trial counsel to depose

or rebut the testimony of Dr. Kaplan, the medical examiner.

Significantly here at issue was a toxicological report prepared

by Dr. Rieders, which related the finding of LSD in the victim's

body.7 Dr. Kaplan, who was not gualified as a toxicologist,

testified that the test results provided by Dr. Rieders showed

only a possibility, and not a probability, of such results. But

this evidence was contradicted by defendant's experts, one of

whom was a nationally recognized expert on LSD. Moreover, at the

new-trial hearing. Dr. Rieders testified as to certain weaknesses

in his report.8 These flaws had been discussed by trial counsel

with his other experts and had led to the decision of counsel not

to present Dr. Rieders as a defense trial witness. The

7At the reguest of petitioner's trial counsel, samples were taken from the victim's body and sent to the laboratory where Dr. Rieders was employed for the purpose of toxicological testing. His report was then furnished to all counsel.

8Such weaknesses included the inability of Dr. Rieders to determine whether the victim was voluntarily or involuntarily under the influence of LSD at the time of her death, whether LSD had only leached into her body from a pocket of her clothing after her death, and whether she had ingested the LSD one to two days prior to her death or had taken it so closely to the time of her death that it had no effect.

6 circumstances surrounding such tactical decision do not

demonstrate "a reasonable probability that but for counsel's

unprofessional errors, the result of the proceeding would have

been different."

. Finally, as aptly

put by the state court, the "real issue" was not whether the

victim had ingested LSD, but whether petitioner was under its

intoxication. State v.

,

.

With respect to the media contract, there is little doubt

that trial counsel's participation in its creation comprised

unprofessional conduct.9 But petitioner's case falls short of

demonstrating proof of the reguisite test for actual conflict of

interest. Otherwise put, the record here does not show "(1) the

lawyer could have pursued a plausible alternative defense

strategy or tactic and (2) the alternative strategy or tactic was

inherently in conflict with, or not undertaken, due to the

attorney's other interests or loyalties." Carey v. United

States,

(1st Cir. 1995) (citing United States

v. Soldevila-Lopez,

(1st Cir. 1994)).

9Rule 1.8(d) of the New Hampshire Rules of Professional Conduct provides:

Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.

7 Petitioner has made no showing that trial counsel lacked

adequate defense funds because of his reliance on the media

contract. Nor can Pitts claim that the LSD intoxication defense

which he, and not trial counsel, originated was caused by the

desire of counsel to sensationalize matters to increase profits

from any purported publication.

Finally, as respects any claim that failure to move to

suppress petitioner's statement supports a finding of counsel's

conflict of interest, it is noted that the decision to proceed

with this strategy was made some three weeks before execution of

the media contract. It was the basis of the "come clean"

approach designed to offset petitioner's previous fabrications

which were manufactured in response to inquiries about the

victim. It would have been extremely difficult, if not

impossible, to attempt to withdraw such defense, and there is not

a shred of evidence to support any claim that counsel

contemplated a media contract at the time this defense was first

advanced.

3. Conclusion

As have the seven other judicial officers who have reviewed

this matter, I find the petitioner's claim of ineffective

assistance falters on lack of proof of prejudice. Petitioner's objections are overruled, and the R & R is herewith accepted.

Because, as I have previously indicated, I have reviewed the

claim under the relevant rules applicable prior to the enactment

of AEDPA, supra note 2, I must here consider the requirement of

former

that further appeal requires the issuance

by me of a certificate of probable cause.10 Findinq that there

is no substantial showinq of the denial of a federal riqht; that

is, no demonstration that the issues raised are debatable amonq

jurists of reason. Barefoot v. Estelle,

, 893 & n.4

(1983), I deny the issuance of such certificate.

The clerk is directed to close this case.

SO ORDERED.

Shane Devine, Senior Judqe United States District Court

December 18, 1996

cc: Shayne Pitts, pro se Cynthia L. White, Esq.

10Under the enactments of AEDPA, a judqe of the court of appeals must now issue a certificate of appealability. This requirement is found in current

(c)(1)(A).