Chamblin v. New Hampshire CV-96-181-M 07/15/97 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

John Chamblin

v. Civil No. 96-181-M

State of New Hampshire

O R D E R

John Chamblin petitions for a writ of habeas corpus pursuant

to

. He contends that his state court

conviction on one charge of theft by unauthorized taking was

obtained in violation of both his Sixth Amendment right to

effective assistance of counsel and Fourth Amendment protection

from unreasonable search and seizure. The government moves to

dismiss the petition on grounds that Chamblin's claims are

procedurally barred for failure to exhaust state remedies and,

alternatively, that his Fourth Amendment claim cannot be

relitigated in a habeas proceeding, and is meritless in any

event. Chamblin moves for summary judgment.1 For the following

1 Although Chamblin characterizes his motion as one for partial summary judgment, the relief he seeks, in part, is an order granting his petition for a writ of habeas corpus. Thus, he seeks judgment in his favor on both issues raised in his habeas petition that survived preliminary review, i.e., ineffective assistance of counsel, and use of evidence obtained during an allegedly unconstitutional search of his car. However, the main focus of his motion is a claim that he is not receiving adeguate medical care in prison, which is not a cognizable claim in a habeas corpus proceeding and will not be considered here. His motion will be construed as one for summary judgment on the two claims that have been allowed following review. reasons, the government's motion is granted, and the petition for

writ of habeas corpus is dismissed.

BACKGROUND

Chamblin was arrested on October 10, 1993, for stealing

driveway sealant from Rich's Department Store in Concord. His

arrest was based on events that began the day before, October 9,

1993, when Officer Mullaney of the Concord Police Department

responded to Rich's following a report that several containers of

driveway sealant had been taken from an outside display. A

witness reported that she saw an African-American male take

containers of sealant, put them into a white "tracker-type

vehicle," and drive off toward Interstate 393. She gave the

license plate number as CME&J. Officer Mullaney was not able to

identify the vehicle based upon the plate or to locate it.

The evening of the next day, October 10, Officer Mullaney

received another report of a theft of driveway sealant from

Rich's involving a male driving a white vehicle with license

plate number C+ME+J. The witness reported that the vehicle was

heading toward Interstate 393 and possibly toward Northwood. The

police later identified the witness who reported the theft as

Robert Makarian, a neighbor of Chamblin's in Northwood.

Officer Mullaney stopped a white Geo Tracker with license

plate number C-ME+J on Interstate 393 about three miles from

Rich's. From the license plate. Officer Mullaney determined that

John Chamblin was the owner of the car. When she approached the

2 car, she saw that the driver was an African-American male and

that there were four containers of driveway sealant in the car

that were similar to the sealant in the Rich's display.

Chamblin, who was driving, told Mullaney that he did not know how

the sealant came to be in his car. Mullaney placed Chamblin

under arrest, seized the containers of sealant, and took Chamblin

to the Concord police station. After the Northwood police saw

four additional containers of sealant in Chamblin's yard, those

containers were also seized.

Chamblin was charged with two thefts of sealant from Rich's.

After Chamblin successfully moved to suppress evidence of the

sealant taken from his yard, the theft charge based on that

evidence was dropped. His motion to suppress evidence of the

sealant taken from his car was denied.

Chamblin was dissatisfied with the representation provided

by his first attorney and wanted to retain attorney Paul Twomey

to defend him, but he was apparently unable to arrange or afford

the representation. When his first attorney withdrew, the court

appointed an attorney for Chamblin from the office of the New

Hampshire Public Defender. Chamblin remained dissatisfied.

Chamblin's second attorney's motion to withdraw was granted in

July 1994 and a third attorney, Lee Topham (also from the public

defender's office), was appointed. Apparently a subseguent

motion to clarify the status of counsel was filed and a hearing

was held, following which the court entered an order dated

October 21, 1994, that states, "After hearing, defendant [states]

3 that he does not object to the continuation of attorney Topham as

counsel at this time." Chamblin was represented by Topham at his

trial.

In February 1995, Chamblin was convicted of theft of the

sealant from Rich's and was sentenced to three and half to seven

years in prison.2 Chamblin filed pro se motions challenging his

conviction (despite being represented by counsel). A hearing was

held in August 1995 on pending motions, including Chamblin's

appointed counsel's motion to withdraw and Chamblin's pro se

motion (by letter) asserting ineffective assistance of counsel.

The court denied the motion to withdraw and instructed Chamblin

to work with his counsel (not Topham but a third attorney

appointed from the public defender's office). The court also

directed the clerk not to accept pleadings filed by Chamblin pro

se while he was represented by counsel.

The New Hampshire Appellate Defender filed a notice of

appeal on Chamblin's behalf raising three issues related to:

suppression of evidence seized in the stop of Chamblin's car;

Officer Mullaney's testimony about suppressed evidence; and

sufficiency of the evidence to convict. But, only the second

issue was briefed by counsel. Chamblin, however, filed a

supplemental pro se brief with the New Hampshire Supreme Court in

which he raised the issue of ineffective assistance of counsel,

arguing that a conflict of interest existed and that Attorney

Topham failed to call necessary witnesses in his defense. The

2 His sentence was based, in part, on his criminal history.

4 New Hampshire Supreme Court summarily affirmed Chamblin's

conviction.

Chamblin, appearing pro se, filed a petition for writ of

habeas corpus in this court on April 8, 1996. After initial

review, amendment, and further motions, two of Chamblin's claims

survived: ineffective assistance of counsel and a Fourth

Amendment illegal search and seizure claim based on the evidence

taken from his car. In the meantime, on July 1, 1996, Chamblin

also filed a pro se petition in state court seeking a writ of

habeas corpus raising six issues, including the same

ineffectiveness of counsel and illegal search and seizure issues

pending in the federal habeas proceeding. He then waived the

ineffectiveness of counsel and illegal search and seizure issues

in the state proceeding. Those issues were not considered on the

merits. The remaining claims were dismissed as procedurally

barred.

In the present habeas proceeding in this court, the

government has moved to dismiss Chamblin's petition, and Chamblin

has moved for summary judgment in his favor.

DISCUSSION

Chamblin seeks habeas relief on grounds that his defense was

prejudiced by ineffective assistance of counsel and by use at

trial of evidence taken from his car in violation of his Fourth

5 Amendment rights. The government moves to dismiss,3 asserting

that he has not exhausted available state remedies and,

alternatively, that his Fourth Amendment claim cannot be

relitigated in a habeas proceeding.

A. Fourth Amendment Claim

Chamblin argues that the state trial court's failure to

suppress four containers of driveway sealant found in his car

when he was stopped on October 10, 1993, and the subseguent use

of that evidence at trial, violated his Fourth Amendment rights.

This court cannot consider a claim "that evidence obtained in an

unconstitutional search or seizure was introduced at . . .trial,"

if the habeas applicant was afforded a full and fair opportunity

to litigate that issue in state court. Stone v. Powell,

(1976); see also Holman v. Page,

(7th

Cir.), rehearing denied,

(7th Cir. 1996); cert.

denied. No. 96-7873,

(U.S. June 2, 1997). A "full

and fair opportunity to litigate the issue" means that the state

process was not hampered by an "intrinsic or systemic infirmity"

3 As a preliminary matter, the court notes that the government relies on references to state court proceedings in support of its motion to dismiss. Ordinarily, reliance on matters outside the pleadings in a motion pursuant to Federal Rule of Civil Procedure 12(b)(6) reguires the court to treat the motion as one for summary judgment under Rule 56. Fed. R. Civ. P. 12(b). An exception exists, however, permitting the court to consider information in the public record, including documents from prior state court cases, without converting a motion to dismiss to one for summary judgment. See Watterson v. Page,

(1st Cir. 1993); see also Henson v. CSC Credit Servs.,

(7th Cir. 1994) .

6 which prevented appropriate consideration of the issue. Tart v.

Commonwealth,

, 497 n.6 (1st Cir. 1991); see also,

e.g., Turentine v. Miller,

(7th Cir.)

(discussing variations in circuits pertaining to standards of

"opportunity"), cert, denied, 117 S. C t . 394 (1996); Willett v.

Lockhart,

(8th Cir. 1994) (same).

Chamblin, through counsel, moved to suppress the evidence

taken from his car on grounds that the stop was based on an

unreliable tip from an anonymous caller. The police officer who

stopped Chamblin's car on October 10, in response to the caller's

report, testified about the circumstances surrounding the call

and her stop of Chamblin on the highway. Chamblin's attorney

guestioned the officer. The court determined that the anonymous

call reporting the theft at Rich's was sufficiently reliable to

justify an investigatory stop because the caller purported to be

an eyewitness to the crime, the police were aware of criminal

activity in the area, and the caller provided sufficient

information to allow the police officer to identify the suspect

car. That same Fourth Amendment issue was included in Chamblin's

appeal to the New Hampshire Supreme Court, but was not briefed.

The Supreme Court summarily affirmed Chamblin's conviction.

Based on the record presented here, Chamblin was obviously

afforded a full and fair opportunity to litigate the suppression

issue. Counsel's failure to brief the Fourth Amendment issue on

appeal to the New Hampshire Supreme Court does not, of course,

mean that the process provided by the state system failed so that

7 Chamblin's opportunity to litigate the issue was lost or

compromised. See Kimmelman v. Morrison,

(1986); see also Stone v. Farley,

(7th Cir.

1996), cert, denied, 117 S. C t . 973 (1997). (Counsel are under

an obligation to the courts not to press meritless issues.)

Accordingly, Chamblin's claim based upon an assertion that his

conviction was obtained through the use of evidence that should

have been suppressed is dismissed.

B. Ineffective Assistance of Counsel

Chamblin contends that he was denied effective assistance of

counsel beginning with his first counsel's representation in

Concord District Court following his arrest on misdemeanor

charges, through his representation at trial, and on appeal of

his conviction. The Attorney General contends that Chamblin has

not exhausted available remedies as to this claim. See

(b)(1).4 More specifically, he argues that

Chamblin's actions during state court proceedings deprived the

state courts of a fair opportunity to consider the issue.5 Thus,

4 To the extent that the Antiterrorism and Effective Death Penalty Act of 1996 has changed the procedural reguirements for habeas proceedings, including the standards for granting an application under § 2254, the amended version of the statute applies to habeas cases pending, such as the present case, at the time of amendment. See Martin v. Bissonette, No. 96-1856,

(1st Cir., May 29, 1997).

5 Chamblin filed a pro se supplemental brief in the direct appeal of his conviction on the issue of ineffective assistance of counsel, which was not included in his counsel's notice of appeal or brief. Because the New Hampshire Supreme Court the Attorney General apparently believes that state court

remedies are still available to address Chamblin's ineffective

assistance claim.6

Although the exhaustion requirement of section 2254(b) (1) is

not jurisdictional, it serves the principle of comity and

provides an important gatekeeping function by assuring that state

courts will be provided the first opportunity to make factual

findings and legal determinations pertaining to state prisoners'

federal rights. See Keeney v. Tamavo-Reves,

(1992); Allen v. Attorney General of Maine,

(1st Cir. 1996). Section 2254, as amended, places great emphasis

on state court factfinding and imposes a heavy burden on a

petitioner who has failed to fully develop the factual record

before seeking federal habeas relief. See

(e).

For that reason, when, as here, the record of state court

proceedings includes no factual development of the issue

presented for habeas relief, and it appears that available state

summarily affirmed Chamblin's conviction, it is unclear whether the court considered the merits of the ineffective assistance of counsel issue. Chamblin raised the issue again in his pro se state habeas petition, but then waived it, and the state court dismissed that issue as waived.

6 It would seem that having raised and waived ineffective assistance of counsel as an issue in his state habeas proceeding, Chamblin would be barred from raising the same issue in another state court proceeding. However, nothing in the pleadings or the record points to state law definitively establishing that such is the case. New Hampshire law, unlike federal law, may well permit successive petitions for habeas relief. As the government relies on the exhaustion requirement, rather than procedural default, see Coleman v. Thompson,

(1991), the court declines to undertake a procedural default analysis on the record presented here. remedies may not have been exhausted, the state court is the

appropriate forum for petitioner's claim. Accordingly,

Chamblin's petition for habeas relief is denied for failure to

exhaust available state remedies. See

(b) (1) (A) .

CONCLUSION

The government's motion to dismiss (document no. 28) is

granted, Chamblin's motion for summary judgment (document no. 29)

is denied. Chamblin's motion for appointment of counsel

(document no. 37) is denied as moot. The petition for writ of

habeas corpus is dismissed, and the Clerk of Court is directed to

close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

July 15, 1997

cc: John Chamblin Patrick E. Donovan, Esg.

10