Knowles v. Cunningham CV-96-475-JD 02/20/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

William James Knowles III

v. Civil No. 96-475-JD

Michael J. Cunningham, Warden New Hampshire State Prison

O R D E R

The pro se petitioner, William James Knowles, III, brought

this action seeking a writ of habeas corpus pursuant to

. The petitioner challenges his conviction on two grounds,

asserting he did not receive (1) potentially exculpatory material

or (2) effective assistance of counsel.

Background

The petitioner was charged with two counts of aggravated

felonious sexual assault stemming from an incident on the evening

of July 29 and the early morning of July 30, 1984. While

babysitting two girls, A.W. and H.C., the petitioner sexually

assaulted A.W. H.C. reported the episode to her mother, B.C.,

who in turn reported it to the police. B.C. had made other

complaints of criminal activity, and it is her involvement in

other complaints that forms the core of the petitioner's

challenge to his conviction. The petitioner's defense counsel argued prior to trial that

material concerning B.C.'s other complaints might contain

exculpatory information to which he would be entitled under Bradv

v. Maryland,

(1963). At a hearing on the issue.

Judge Dalianis of the Hillsborough County Superior Court ruled

that she would review the material in camera, redact identifying

information to which the defendant was not entitled, and provide

the results to defense counsel. The judge further indicated that

if she felt that disclosure of the material was inappropriate,

she would conduct a further hearing. However, the record does

not indicate that a further hearing was conducted.

At trial, B.C. was not called to testify as a witness by

either the prosecution or the defense. The petitioner was found

guilty by a jury of both counts of aggravated felonious sexual

assault on January 13, 1987. On March 13, 1987, he was sentenced

to prison for seven to fifteen years on one count and for three

to fifteen years on the other, to be served consecutively. The

New Hampshire Supreme Court upheld the petitioner's conviction on

direct appeal. See State v. Knowles,

,

(1988). In 1995, some seven years later, the petitioner moved in

state court to have his guilty verdicts set aside and a new trial

granted on the grounds asserted herein. Judge Lynn of the

Hillsborough County Superior Court denied his motion on August

2 18, 1995, and denied his motion for reconsideration on September

15, 1995. On March 25, 1996, the New Hampshire Supreme Court

declined to accept the petitioner's appeal. On September 13,

1996, the petitioner brought this action.

Discussion

Bradv v. Maryland requires the government to disclose any

exculpatory evidence that is "material either to guilt or to

punishment."

(1963). Material evidence is that

which, if disclosed, "might have affected the outcome of the

trial." United States v. Agurs,

(1976).

However, "[a] defendant's right to discover exculpatory evidence

does not include the unsupervised authority to search through the

[government's] files." Pennsylvania v. Ritchie,

(1987). Nor does it entitle a defendant to require a trial court

"to conduct an in camera fishing expedition through the

government's files." United States v. Pou,

(8th Cir. 1992); see also United States v. Navarro,

(7th Cir. 1984) ("Mere speculation that a government file may

contain Bradv material is not sufficient to require a remand for

in camera inspection."). Rather, "[t]o establish a violation of

Bradv, a defendant must provide the court with some indication

that the materials to which he . . . needs access contain

3 material and potentially exculpatory evidence." United States v.

Brandon,

(1st Cir. 1994). In addition, to

warrant setting aside a guilty verdict on the basis of a failure

to disclose exculpatory information, a defendant must show that

any evidence not disclosed caused him "undue prejudice." United

States v. Drougas,

(1st Cir. 1984).

The petitioner alleges that he was denied a right to

potentially exculpatory evidence but he has not demonstrated the

existence of any specific exculpatory evidence to which he was

denied access. Instead, he challenges the in camera review

process, arguing that only his defense counsel could have

determined whether material would have been exculpatory and thus

his counsel should have been given the opportunity to examine the

material.1 The petitioner's argument is unavailing.

It is well established that "[t]he prosecutor need not turn

over all files so that defense counsel may search out exculpatory

material; counsel must be satisfied with the representations of

'The respondent has taken the position that Magistrate Judge Muirhead's preliminary review order of October 24, 1996, dismissed this portion of the petitioner's claim. Respondent's Answer to Petition for Writ of Habeas Corpus at 3 n.l. The petitioner disputes this characterization. Although the magistrate found that "petitioner's Bradv-related claim would appear to be without substantive merit," the court finds the order to be somewhat ambiguous about whether the magistrate actually dismissed the claim pursuant to Rule 4 of the Rules Governing Section 2254 Cases and therefore considers its merits.

4 the prosecutor, fortified by judicial inspection in close cases."

United States v. Danovaro,

(7th Cir. 1989). In

addition, even assuming that the petitioner was denied access to

material concerning B.C.'s other complaints, which the petitioner

claims would have enabled him to impeach B.C., B.C. was not

called at trial and the petitioner has not suggested any other

reason the material might be relevant or exculpatory. Most

importantly, the petitioner has failed to demonstrate what

prejudice the putative failure to disclose the unidentified but

purportedly exculpatory material caused him. For these reasons,

the court dismisses this claim.

To sustain a claim of ineffective assistance of counsel, the

petitioner must show "both that trial counsel's performance fell

below an objective standard of reasonableness, and that counsel's

deficient performance was so prejudicial as to undermine

confidence in the outcome of the trial." Argencourt v. United

States,

(1st Cir. 1996) (citing Strickland v.

Washington,

(1984)). The court's inguiry

into the reasonableness of counsel's performance is highly

deferential, and the court "must indulge a strong presumption

that counsel's conduct falls within the wide range of reasonable

professional assistance."

(guotation marks omitted). In

particular, "[t]he decision whether to call a particular witness

5 is almost always strategic, requiring a balancing of the benefits

and risks of the anticipated testimony." Lema v. United States,

(1st Cir. 1993). To satisfy the "prejudice"

prong, the petitioner "must affirmatively prove 'a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different.'"

Argencourt,

(quoting Strickland,

) .

The petitioner asserts that his defense counsel's failure to

call B.C. as a witness at trial constituted ineffective

assistance of counsel. His argument, not fully articulated in

his petition, appears to be that B.C.'s history of other

complaints provided fertile opportunity to impeach her

credibility. However, since B.C. was not called as a witness by

the prosecution she could not be subject to impeachment.

Furthermore, the petitioner has provided no rational basis for

his assertion that defense counsel should have called B.C. as a

witness. Since the petitioner has produced no evidence to

support his bare assertion that defense counsel's failure to call

B.C. at trial fell below objective standards of reasonableness,

the court will not second-guess defense counsel's decision not to

call B.C. merely for the purpose of advancing an unsubstantiated

theory. In addition, the petitioner has failed to establish that

he was prejudiced as a result of his counsel's performance.

6 Therefore, the court dismisses the petitioner's claim that he was

denied the effective assistance of counsel.

Conclusion

For the reasons stated above, the petition for a writ of

habeas corpus is denied. The clerk is ordered to close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge

February 20, 1997

cc: William James Knowles III, pro se Joseph N. Laplante, Esquire

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