Frost v. Cunningham CV-97-255-B 06/15/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Joel Frost

v. C-97-255-B

Michael J. Cunningham, Warden, New Hampshire State Prison

MEMORANDUM AND ORDER

Petitioner Joel Frost was tried and convicted in November

1993 of aggravated felonious sexual assault committed against a

"mentally defective" person in violation of

-A:2(I)(h) (1996). After unsuccessfully challenging his

conviction on direct appeal. Frost filed this petition for a writ

habeas corpus pursuant to

(West 1994 & Supp.

1998). Frost contends that based on the evidence presented at

trial, no rational jury could have found the victim mentally

defective beyond a reasonable doubt and, thus, that his convic­

tion stands in violation of his Fourteenth Amendment right to due

process of law. Both Frost and respondent Michael J. Cunningham

now move for summary judgment. For the reasons that follow, I deny petitioner's motion and

grant respondent's.

I. BACKGROUND

Frost was convicted of sexually assaulting Keri Perkins, a

developmentally disabled individual in her mid-twenties at the

time Frost assaulted her. Frost met Perkins through Rick

Meserve, another developmentally disabled individual with whom

Perkins had attended the special-needs program at their local

high school. After graduating from the program, Perkins and

Meserve remained friends. Perkins, who continued to live with

her parents, began visiting Meserve at his residence, a

Developmental Services of Strafford County residential-care

facility, on a biweekly basis over a two-year period. Because

Perkins cannot drive, her parents had to drive her to see

Meserve. At Perkins's parents' reguest. Frost, who worked as one

of Meserve's live-in residential counselors, agreed to occasion­

ally transport Perkins to and from Meserve's residence. Usually,

Meserve accompanied Frost on these trips, but on occasion. Frost

and Perkins returned to her house by themselves.

In January 1992, Perkins asked her mother if Perkins would

get her period soon. Her mother assured her that she would.

2 explaining that a woman only stops menstruating if she is old or

pregnant. Perkins's mother added that Perkins could not be

pregnant because she had never had sexual intercourse. Upon her

mother's making this remark, Perkins became hysterical and told

her mother that Frost had had intercourse with her.

At trial, Perkins testified as to the details of how Frost

had sexually assaulted her. Frost engaged in sexual intercourse

with her twice, each time during Meserve's afternoon nap. The

first incident occurred in the living room at Meserve's residence

and the second in the staff bedroom. With the aid of an

anatomically-correct drawing, Perkins identified the part of

Frost's body that had touched her. Perkins stated that she did

not like the sensation of intercourse and that it had lasted for

a "long time." After assaulting Perkins, Frost told her not to

tell her parents or he would "get into trouble," and then took

her home.

In addition, Perkins's mother testified as to the severity

of Perkins's disability. Perkins's disability is permanent in

nature, the result of mental retardation. She could only attend

school as part of a special-needs program and has minimal reading

and writing skills. Perkins has never lived away from home; she

cannot be left alone for extended periods of time because of the

3 risk that she will hurt herself; and she cannot qualify for a

driver's license. Perkins is employed in the kitchen of a

training school for handicapped persons, performing repetitive

tasks under supervision. Her mother must serve as her repre­

sentative payee because she is incapable of managing her money.

Finally, a defense expert testified that because Perkins's

disability is classified as a mild mental retardation, she would

be expected to have cognitive abilities resembling those of a

child between eight and twelve years old. On such evidence, the

jury found Frost guilty of sexually assaulting a mentally defec­

tive person in violation of

-A:2(I)(h).

Frost appealed his conviction on the ground that there was

insufficient evidence presented at trial for a rational jury to

find that beyond a reasonable doubt Perkins was mentally

defective within the meaning of the statute. Upon review, the

New Hampshire Supreme Court rejected Frost's argument and

affirmed his conviction. Thereupon, Frost filed the instant

petition.

I. STANDARD OF REVIEW

_____ The standards of review that apply to habeas corpus claims

arising from state court judgments are described in 28 U.S.C.A.

4 § 2254(d) and (e). When a habeas corpus claim has been

adjudicated on the merits in state court, the state court's legal

determinations must stand unless they are "contrary to, or

involve[] an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States."

(d)(1). The First Circuit recently

held that in making such an assessment, a "federal habeas court

. . . must undertake an independent two-step analysis." 0'Brien

v. Dubois, No. 97-1979,

(1st Cir. May 26,

1998) (citing James S. Liebman & Randy Hertz, Federal Habeas

Corpus Practice and Procedure § 30.2c (Supp. 1997)).

The habeas court must first determine whether the Supreme

Court has "prescribed a rule that governs the petitioner's

claim." O'Brien,

. If so, in assessing

both guestions of pure law and mixed guestions of law and fact,

the habeas court exercises plenary review of the state court

decision, Liebman & Hertz, supra, § 30.2c, at 313-14, 317; see

Thompson v. Keohane,

(1995) (holding that in

examining mixed guestions of law and fact, a federal habeas court

exercises plenary review over a state court's application of a

legal standard to the facts of a case); Stewart v. Coalter,

(1st Cir. 1995) (ruling that a federal habeas court

5 reviews insufficiency of evidence claims de novo), to "gauge[]

whether the state court decision is 'contrary to' the [relevant

Supreme Court] rule," 0'Brien,

. The

petitioner bears the burden of proving that the state court

decision was contrary to the applicable federal law. Id. at *8.

In the absence of a governing Supreme Court rule, the habeas

court takes the second step, assessing whether the state court's

"use of (or failure to use) existing [Supreme Court] law in

deciding the petitioner's claim involved an 'unreasonable

application' of Supreme Court precedent." Id. at *7. In other

words, "a state court's decision can and must stand unless the

state court acted unreasonably in fashioning its own rule for the

claim out of the Supreme Court's peripherally pertinent

precedents." Liebman & Hertz, supra, § 30.2c, at 310 (When there

is no clear Supreme Court precedent, "section 2254(d)(1) . . .

validates reasonable, good faith interpretations of existing

precedents." (internal guotations omitted)). At this stage of

the review, the petitioner must show that the state court

decision was "so offensive to existing precedent, so devoid of

record support, or so arbitrary, as to indicate that it is

outside the universe of plausible, credible outcomes." O'Brien,

.

6 The state court's factual findings must be adopted unless

they are "unreasonable" "in light of the evidence presented in

the State court proceeding[s]."

(d)(2).

Factual findings are entitled to a presumption of correctness

which cannot be overcome unless the petitioner can point to

"clear and convincing evidence" to support his claim that the

facts were incorrectly decided.

(e)(1). I

apply these standards in reviewing Frost's habeas corpus claim.1

III. DISCUSSION

Frost contends that based on the evidence presented at

trial, no rational jury could have found the victim mentally

defective beyond a reasonable doubt and, thus, that his

conviction stands in violation of his Fourteenth Amendment right

to due process of law.2 Because there is no dispute that Frost

1 The fact that the matter is before me on a motion for summary judgment does not affect my analysis. The content of the trial transcript and the state court order on which my ruling is based are not in dispute and, thus, respondent is entitled to judgment as a matter of law.

2 Frost also raises a number of other claims that, by his own admission, see Brief for the Defendant at 1-3, State v. Frost,

(1996) (Nos. 93-828 & 94-795), were not preserved for appeal. As Frost has failed to establish cause and prejudice for his default, he cannot obtain review of those claims in this court. See

(b)(1)(A); Gray v. Netherland,

(1996); Scarpa v. Dubois, 38 7 received an adjudication on the merits in state court with

respect to this claim, see

(d); Neellev v.

Nagle,

, 925 (11th Cir. 1998) (holding that a state

court adjudicates the merits of an issue where the petitioner

raises the issue on appeal and the state court makes findings

addressing the petitioner's argument), I proceed to address the

merits of his contention.

Both parties agree that the Supreme Court set forth the

standard governing insufficiency of evidence claims in Jackson v.

Virginia,

(1979). See O'Brien,

, at *8 n.6. Under Jackson, in examining an insufficiency

of evidence claim, the reviewing court must construe "the

evidence in the light most favorable to the prosecution" and

determine whether "any rational trier of fact could have found

the essential elements of the crime [proved] beyond a reasonable

doubt." Jackson,

. In doing so, the court does

not "ask itself whether it believes that the evidence at . . .

trial established guilt beyond a reasonable doubt" but only

whether the record could reasonably support the jury's finding.

. The court must apply this standard with specific

reference to each contested element of the offense -- here, the

F.3d 1, 6 (1st Cir. 1994).

8 definition of "mentally defective" -- as defined by state law.

Campbell v. Fair,

(1st Cir. 1988) .

Accordingly, I must conduct plenary review, see Liebman &

Hertz, supra, § 30.2c, at 313-14, 317; Stewart,

,

of the New Hampshire Supreme Court's determination that the

prosecution proffered evidence sufficient to permit a rational

juror to find that Perkins was mentally defective beyond a

reasonable doubt, see O' Brien,

. In doing

so, unless I find that the record is so lacking in evidence that

it could allow no rational juror to so conclude, I must hold that

the New Hampshire Supreme Court's decision was not contrary to

the rule established in Jackson.

New Hampshire Revised Statutes Annotated § 632-A:2(I)

provides that a person is guilty of aggravated felonious sexual

assault if "he engages in sexual penetration with another person

. . . (h) [w]hen, except as between legally married spouses, the

victim is mentally defective." Case law interpreting this

provision has made clear that a person is deemed to be mentally

defective if, because of a mental condition, she is "incapable of

freely arriving at an independent choice whether or not to engage

in sexual conduct." State v. Frost,

(1996).

In other words, a person is mentally defective if, because of her mental condition, she cannot appreciate the "immediate physical

consequences of . . . [her] sexual conduct, including . . . its

potential for causing pregnancy or disease."

Thus, for

Frost to prevail on his claim, he must show that the evidence

produced at trial was insufficient to permit a rational trier of

fact to find that Perkins was incapable of understanding the

consequences of her behavior.

The evidentiary record, however, is replete with evidence

that would allow a rational juror to so conclude. For instance,

Perkins's hysterical response to her mother's explanation that a

woman could not become pregnant without having sexual intercourse

tends to show Perkins's lack of understanding up to that point of

the connection between sexual intercourse and pregnancy. In

addition, Perkins's mother's testimony reveals that Perkins

lacked the capacity to appreciate the consequences of her

behavior. Perkins's mother stated, for example, that her

daughter has never lived away from home; she cannot be left alone

for extended periods of time because of the risk that she will

hurt herself; she cannot qualify for a driver's license; and her

mother must serve as Perkins's representative payee for employ­

ment purposes because she is incapable of managing her money.

Finally, the defense expert's testimony that Perkins would be

10 expected to have cognitive abilities resembling those of an

eight- to twelve-year-old child also supports the conclusion that

Perkins's ability to understand the conseguences of her behavior

is lacking.

Thus, petitioner has not shown that there was insufficient

evidence to permit a rational trier of fact to find that Perkins

was incapable of understanding the conseguences of her behavior

and, thus, was mentally defective. To the contrary, upon review

of a record replete with evidence of Perkins's mental disability,

the jury could and did reasonably conclude that beyond a

reasonable doubt Perkins was incapable of understanding the

conseguences of engaging in sexual intercourse with petitioner.

As a result, I hold that the New Hampshire Supreme Court's ruling

affirming the jury's finding was not contrary to clearly

established federal law and that Frost's insufficiency of

evidence claim must fail.

IV. CONCLUSION

For the foregoing reasons, I deny petitioner's motion for

summary judgment and grant respondent's. Accordingly, the clerk

shall enter judgment for the respondent.

11 SO ORDERED.

Paul Barbadoro Chief Judge

June 15, 1998

cc : Joel Frost, pro se John Kissinger, Esg.

12