Buckley v. Commissioner, NH DOC CV-97-353-B 07/17/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Gerald Buckley

v. C-97-353-B

Nicholas Pishon1. Acting Commissioner. New Hampshire Department of Corrections

MEMORANDUM AND ORDER

Gerald Buckley was tried and convicted in June 1990 of

kidnapping, aggravated felonious sexual assault, and misdemeanor

sexual assault. After unsuccessfully challenging his conviction

both on direct appeal and through a state habeas corpus

proceeding, Buckley filed this petition for a writ of habeas

corpus pursuant to

(West 1994 & Supp. 1998).

Buckley contends that: (1) the trial court violated his Sixth

Amendment right to confront witnesses by preventing him from

eliciting certain testimony during his cross-examination of key

prosecution witnesses; (2) the prosecution violated his

Fourteenth Amendment right to due process of law by using false

evidence to obtain his conviction; and (3) the State violated the

Fifth Amendment's Double Jeopardy Clause by retrying him on the

1 The petition originally was directed against Paul Brodeur, Commissioner of Corrections. Since it was filed, however. Commissioner Brodeur has been replaced by Acting Commissioner Nicholas Pishon, who is the proper party at this time.

1 same charge after his original trial ended in a mistrial. In

response, the Commissioner has moved for summary judgment.

For the reasons that follow, I grant the Commissioner's

motion.

I. BACKGROUND

At approximately 2:30 a.m. on December 13, 1988, nineteen-

year-old Deanna Walls was attacked in the parking lot adjacent to

the apartment building where she lived with her mother. Walls

had just parked her car and was beginning to get out of the

vehicle when her assailant approached her and grabbed her around

the neck. Putting his hand over her eyes, the assailant shoved

Walls into the passenger seat of her car. He put a knife against

her face and began to sexually assault her. The assault lasted

for nearly three hours.

At one point, in an attempt to distract her attacker. Walls

tried to engage him in conversation. She told him that she was

studying business administration at Mount Wachusett Community

College. He responded by telling her that he had attended the

same college and owned three businesses. Eventually, the

attacker left the car after forcing Walls to perform oral sex.

Thereupon, Walls went into her apartment and told her mother what

had happened. Her mother notified the police.

2 With Walls's assistance, the police gathered evidence that

led to the State's decision to prosecute Buckley. Immediately

after the attack. Walls met with the police to help them make a

composite drawing of the attacker. Several months later, as part

of the investigation. Walls made phone calls to six answering

machines and identified Buckley's voice on one of the recordings.

She subseguently picked him out of a photographic line-up. In

addition, the police discovered that on December 13, 1988,

Buckley had made an early morning call from his car phone and

that he had attended Mount Wachusett Community College and owned

three businesses.

Shortly after Buckley's trial commenced, the prosecution

discovered that the police had found fingerprint evidence on

Walls's car but, because of a miscommunication, had never sent

the fingerprints to the state crime lab. The prosecution

immediately sent the prints to the lab which determined that they

matched Buckley's. The trial judge then held an evidentiary

hearing and determined that the fingerprint evidence was

admissible. Because the defense had not known about the prints

before the trial, however, the judge granted the defense's motion

for a mistrial.

At the second trial, the court granted the prosecution's

motion in limine to preclude all mention of the first trial. The

defense had planned to refer to the first trial when cross-

examining the police witnesses in an effort to show that the

police had a motive to fabricate the fingerprint evidence.

3 Specifically, the defense planned to elicit admissions from the

police witnesses that they had believed the first trial was

progressing badly for the prosecution and, thus, that they had

fabricated the fingerprint evidence (using fingerprints taken

from a prior burglary investigation at Buckley's house) to

strengthen the prosecution's case. The defense proceeded with

its fabrication defense notwithstanding the court's order.

Nevertheless, the jury rejected Buckley's defense and found him

guilty.

Buckley appealed the trial court's ruling that limited his

ability to cross-examine the police witnesses regarding the first

trial. Upon review, the New Hampshire Supreme Court summarily

affirmed Buckley's conviction. Buckley then filed a petition for

a writ of habeas corpus in state court alleging that: (1) the

police had fabricated the fingerprint evidence in violation of

his right to due process of law; and (2) the State violated the

Double Jeopardy Clause by subjecting him to a second trial on the

same charge. After holding a hearing, the state court denied the

petition. On appeal, the New Hampshire Supreme Court declined to

review the case. Thereupon, Buckley filed the instant petition.

4 II. STANDARD OF REVIEW

The standards of review that apply to habeas corpus claims

arising from state court judgments are described in

(d) and (e). When a habeas corpus claim has been adjudi­

cated 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, the habeas court

exercises plenary review of the state court decision to "gauge[]

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

Supreme Court] rule," O' Brien,

.

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

court takes the second step, assessing whether the state court

decision reflects an unreasonable application of the Supreme

Court's peripherally relevant jurisprudence. Id. at *7, 9;

Liebman & Hertz, supra, § 30.2c, at 310-11. Where the state

court decision expressly sets forth the rule that the court

5 crafted from relevant Supreme Court precedent for use in deciding

the case under review, the habeas court must let the decision

stand unless either the articulated rule is based on an

unreasonable interpretation of Supreme Court precedent or the

state court reached an unreasonable outcome in applying the rule

to the facts of the case. 0' Brien,

;

Liebman & Hertz, supra, § 30.2c, at 310-11 (When there is no

clear Supreme Court precedent, "section 2254(d)(1) . . .

validates reasonable, good faith interpretations of existing

precedents." (internal guotations omitted)). Finally, where the

state court decision does not expressly articulate the rule that

the court crafted from relevant Supreme Court precedent for use

in deciding the case under review, the habeas court must

determine whether the outcome reached by the state court is

reasonably consistent with what relevant Supreme Court precedent

would demand based on the record of the case. See O'Brien,

(for state court decision to be reasonable,

decision must be adeguately supported by record); Liebman &

Hertz, supra, § 30.2c, at 313 (section 2254(d) (1) provides for

habeas court review of all state court decisions whether

addressing guestions of law or mixed guestions of law and fact) .

The petitioner bears the burden of proving that the state court

decision is contrary to the governing Supreme Court rule or that

it reflects an unreasonable application of relevant Supreme Court

precedent. See O'Brien,

.

The state court's factual findings must be adopted unless

6 they are "unreasonable" "rn Irght of the evrdence presented rn

the State court proceeding[s]."

(d)(2).

Factual findings are entitled t 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 Buckley's habeas corpus

claim.2

III. DISCUSSION

Buckley raises three claims in his petition. First, he

contends that the trial court violated his Sixth Amendment right

to confront witnesses by preventing him from eliciting certain

testimony during his cross-examination of key prosecution

witnesses. Second, Buckley argues that the prosecution violated

his Fourteenth Amendment right to due process of law by using

false evidence to obtain his conviction. Third, he asserts that

the State violated the Fifth Amendment's Double Jeopardy Clause

by retrying him on the same charge after his original trial ended

2 The fact that the matter is before me on a motion for summary judgment does not affect my analysis. I have already determined that Buckley is not entitled to an evidentiary hearing to supplement the state court record. See note 3, infra. Moreover, the content of the trial and hearing transcripts and the state court orders on which my ruling is based are not in dispute. Respondent is entitled to judgment as a matter of law even when the record is construed in the light most favorable to petitioner.

7 in a mistrial. I examine each contention in turn.3

A. Confrontation Clause Claim

Buckley claims that the trial court violated his Sixth

Amendment right to confront witnesses by preventing him at his

second trial from cross-examining the police witnesses regarding

his first trial.

There is "no rule in the [Supreme]Court's Confrontation

Clause jurisprudence that governs . . . petitioner's claim of

error." 0'Brien,

. "None of the Court's

pronouncements flesh out its very general treatment of cross-

examination rights, either by way of a more refined rule

specifically intended for application to variant factual contexts

or by way of a fact-specific rule that governs" the type of

guestion at issue here.

Conseguently, to prevail on his

claim, Buckley must show that the trial court's limitation of his

ability to cross-examine the police witnesses reflects an

unreasonable application of the Supreme Court's peripherally

relevant jurisprudence. See

(d) (1); O'Brien,

. Because the court did not expressly

3 Buckley also contends that he did not receive a full and fair opportunity to adjudicate his fabrication-of-evidence claim in state court. Thus, earlier in this litigation, he reguested that I hold an evidentiary hearing with respect to that claim. Buckley's entitlement to an evidentiary hearing is governed by

(e)(2). Under this provision, a habeas corpus petitioner generally will not be entitled to an evidentiary hearing on the ground that he failed to develop the factual basis of his claim in state court. Breard v. Greene, 118 S. C t . 1352, 1355 (1998). Buckley failed to articulate any unusual facts to support his reguest that would exempt it from the general rule. Accordingly, I denied his reguest for an evidentiary hearing. articulate the rule that it crafted from relevant Supreme Court

precedent for use in deciding the case, I review that court's

decision to determine whether the outcome reached by the court is

reasonably consistent with what relevant Supreme Court precedent

would demand based on the record of the case. See 0'Brien,

; Liebman & Hertz, supra, § 30.2c, at 310-11,

313.

The Sixth Amendment's Confrontation Clause, made applicable

to the states through the Fourteenth Amendment, Pointer v. Texas,

(1965), guarantees a criminal defendant the

right to confront the witnesses against him, Delaware v. Van

Arsdall,

(1986); United States v. Williams,

(1st Cir. 1993). "An essential component of this

right is the defendant's prerogative to establish the biases,

prejudices, or ulterior motives of these witnesses through cross-

examination." Williams,

(citing Davis v. Alaska,

(1974)). Conseguently, a trial court must

permit sufficient cross-examination of a witness to enable the

jury "to make a discriminating appraisal of the possible biases

and motivations of the witness." Williams,

(internal guotations omitted).

The Confrontation Clause, however, guarantees only "an

opportunity for effective cross-examination, not cross-

examination that is effective in whatever way, and to whatever

extent, the defense might wish." Van Arsdall,

.

Thus, the trial court has broad discretion to impose reasonable limits on the extent of cross-examination, including limits to

avoid inquiry into "marginally relevant" issues. Van Arsdall,

; Williams,

. "If the jury has

sufficient evidence before it bearing on the witness's bias, the

court need not permit unending excursions into each and every

matter touching upon veracity." Williams,

(internal alterations omitted). The court need only allow the

defendant "ample opportunity" to undermine the witness's

credibility "by probing her bias and motive for testifying."

Thus, in determining whether the outcome reached by the trial

court is reasonably consistent with what relevant Supreme Court

precedent would demand, I review the record of the case to assess

whether the court allowed Buckley ample opportunity to undermine

the credibility of the police witnesses.

In conducting such a review of the record, I find that

Buckley had ample opportunity to present the jury with evidence

it could use in assessing whether the police had a motive to

fabricate the fingerprint evidence. For instance, Buckley

attempted to undercut the strength of the fingerprint evidence

by cross-examining the police officers about their strong desire

to convict him on the basis of their belief that he was the

assailant. Further, defense counsel elicited testimony from the

officers that prior to the fingerprint analysis, the case against

Buckley was weaker. Cross-examination of the officers revealed

that both the prosecution and the police believed Buckley may

have been acquitted had the fingerprint evidence not come to

10 light.

Finally, Buckley was given considerable latitude in

attempting to demonstrate on cross-examination that the finger­

print evidence was unreliable. Toward this end, defense counsel

was able to establish that: (1) Peter Bouchard, the police

officer who took the fingerprints from Walls's car, stated

shortly after examining the car that he had not found any viable

prints; (2) there were discrepancies in the descriptions of the

eguipment used to take the prints; and (3) there were possible

breaches of the protocol used in the collection and reporting of

the fingerprint evidence.

Thus, I find that despite preventing Buckley from refer­

encing the first trial during the second, the trial court

provided him with ample opportunity to present the jury with

evidence bearing on the police witnesses' credibility. See

Williams,

. Conseguently, I hold that the outcome

reached by the court -- i.e., its denial of Buckley's reguest to

reference the first trial during the second -- is reasonably

consistent with what relevant Supreme Court precedent would

demand.

B. Due Process Clause Claim

Buckley next argues that the prosecution violated his

Fourteenth Amendment right to due process of law by using false

fingerprint evidence to obtain his conviction.

"[A] conviction obtained through [the] use of false evidence

. . . must fall under the Fourteenth Amendment." Napue v.

11 Illinois,

(1959); accord Carter v. Johnson,

(5th Cir.), judgment vacated on other grounds by

118 S. C t . 409 (1997). To establish a due process violation, a

habeas corpus petitioner must establish that: (1) the evidence

offered by the State was actually false; (2) the prosecution knew

it was false; and (3) the evidence was material to the peti­

tioner's conviction. Carter,

. Because Buckley

cannot establish either that the fingerprint evidence was false

or that the state knew it was false, I reject his due process

claim.

In the instant case, the state habeas court found that the

fingerprint evidence was not false and, even if it were, the

prosecution did not know it was false and/or did not intend to

introduce false evidence at trial. A state trial or habeas

court's determinations regarding whether putatively false

evidence is actually false and whether the prosecution knew it

was false are factual findings entitled to a presumption of

correctness by a reviewing federal court.

Thus, Buckley

can only prevail on his false-evidence claim if he can establish

that the contested findings are unreasonable in light of the

evidence presented in the prior state court proceedings. See

(d)(2); Carter,

. Petitioner must

meet his burden by pointing to clear and convincing evidence.

See

(e)(1); see also Colorado v. New Mexico,

(1984) ("Clear and convincing evidence" means

evidence that could place in a fact finder "an abiding

12 conviction" that the truth of a party's factual contentions is

"highly probable.").

Buckley's argument that the fingerprint evidence used

against him at trial was false and that the State knew about it

rests solely on his contention that there is a discrepancy

between the appearance of the fingerprint powder that was used to

lift the fingerprint evidence and the powder he claims was used

on Walls's car. Whereas the powder used to lift the fingerprint

evidence contained relatively few, and mainly small, metallic

flakes, the powder Buckley asserts was used on Walls's car

contained many metallic flakes of all sizes. Buckley further

reasons that if such a discrepancy exists, the police must have

known at the time of trial that the fingerprint evidence was

false. Buckley, however, has failed to identify sufficient

evidence supporting his position to rebut the presumption of

correctness accorded the state habeas court's contrary

conclusion.

Buckley's false evidence claim suffers from several fatal

flaws. First, he could not establish that the fingerprint powder

that was used at the crime scene came from the same source as the

powder on which he bases his comparisons. Specifically, the

habeas court reasonably found from the evidence that Buckley

never established that: (1) the chain of custody for the tin of

fingerprint powder purportedly used at the crime scene remained

unbroken between December 1988 and 1996 when the powder in the

tin was analyzed; or (2) that the powder contained in the tin

13 remained in the same condition until it was analyzed in 1996.

Consequently, as the state habeas court supportably found, it is

not at all certain that the 1996 tin is the same tin used at the

crime scene or that it contains the same powder.

Even if petitioner had established the chain of custody

for the 1996 tin and the integrity of its contents, he never

countered the Commissioner's evidence explaining the discrepancy

between the appearance of the powder used to take the fingerprint

evidence and the appearance of the powder purportedly used on

Walls's car. The Commissioner has offered three pieces of

evidence that the state habeas court accepted as providing a

reasonable explanation of the discrepancy.

First, at the evidentiary hearing held before the state

habeas court, Morris Boudreau, a criminalist with the New

Hampshire State Police Forensic Laboratory, testified that "brush

contamination" could have caused the discrepancy. Boudreau

stated that if a brush previously dipped in a gray powder were

subsequently dipped in the 1996 tin's powder, then a composite

powder with relatively few, and mainly small, flakes --

resembling the powder used to take the fingerprint evidence at

issue here -- would result. Boudreau's opinion is supported by

the testimony of Bouchard, the police officer who took the

fingerprints. Bouchard testified that he does not use a new

brush every time he uses a different type of powder and, in fact,

routinely combines different types of powders to obtain the most

effective mix.

14 Second, according to Boudreau, contaminants on the surfaces

from which the fingerprints were taken could have caused the

discrepancy between the appearance of the fingerprint evidence

powder and that of the 1996 tin powder. Boudreau testified that

surface contaminants can change the color and characteristics of

the powder that adheres to a fingerprint.

Third, Boudreau explained that the technigue of powder

application in combination with the orientation of the surface on

which the powder was applied could have caused the discrepancy.

When a vertical surface is dusted for fingerprints, a technician

will freguently start from the top of the surface and work

downwards. In doing so, many of the metallic flakes within the

powder may stick to the top of the sample surface. Thus, if a

fingerprint is taken from the bottom of the sample surface,

the fingerprint may contain relatively few metallic flakes.

Bouchard's testimony bolstered Boudreau's in that Bouchard stated

he routinely applies fingerprint powder to a vertical surface in

just the manner Boudreau described.

Because of the strength of the evidence countering Buckley's

arguments that the fingerprint evidence was false and that the

police knew about it, I am not persuaded that his contentions are

"highly probable" so as to meet the clear and convincing evidence

standard demanded by

(e)(1). Thus, I hold that

petitioner has not established that the contested findings are

unreasonable in light of the evidence presented in the prior

state court proceedings. See

(d)(2); Carter,

15 110 F .3d at 1104.

C. Double Jeopardy Clause Claim

Finally, Buckley asserts that the State violated the Fifth

Amendment's Double Jeopardy Clause by retrying him on the same

charge after his original trial ended in a mistrial.

The Double Jeopardy Clause, made applicable to the states

through the Fourteenth Amendment, Oregon v. Kennedy,

, 671 n.3 (1982) (citing Benton v. Maryland,

(1969)), prohibits subjecting a criminal defendant to repeated

prosecutions for the same offense, Kennedy,

;

United States v. Morris,

(1st Cir. 1996). The

Clause, however, does not mandate that a state must always

prosecute the defendant in a single proceeding. Kennedy,

. For instance, a defendant's motion for a mistrial,

even if necessitated by prosecutorial or judicial error, usually

removes all barriers to reprosecution on the same charge. See

; United States v. Cartaaena-Carrasquillo,

(1st Cir. 1995).

The narrow exception to this rule bars retrial where the

defendant establishes that the prosecution or trial court

intended through their behavior to provoke the defendant into

moving for a mistrial. Kennedy,

;

accord United States v. Huang,

(2d Cir. 1992)

(finding that a showing even of gross negligence on the part of

the prosecution or trial court is insufficient to invoke the

exception). "The fact that the government blunders at trial and

16 the blunder precipitates a successful motion for a mistrial does

not bar a retrial. . . . The only relevant intent is intent to

terminate the trial, not [even] intent to prevail at . . . trial

by impermissible means." United States v. Oseni,

(7th Cir. 1993).

In the case at hand, the state habeas court found that

neither the prosecution nor the trial court intended through

their actions to provoke Buckley into moving for a mistrial. A

state court's determination regarding whether the prosecution or

trial court intended to provoke a mistrial is a factual finding,

Kennedy,

, entitled to a presumption of correct­

ness by a reviewing federal court,

(e)(1).

Thus, Buckley can only prevail on his double jeopardy claim if he

can establish by clear and convincing evidence, see id.; see also

Colorado,

, that the contested finding is

unreasonable in light of the evidence presented in the prior

state court proceedings, see

(d)(2).

Buckley contends that the prosecution's delay in introducing

the fingerprint evidence and the trial court's ruling that the

evidence was admissible were calculated to goad him into moving

for a mistrial. Buckley, however, has not pointed to any

evidence to support this contention. To the contrary, most of

the evidence cuts against his argument. The state habeas court

affirmed the original trial court's finding (arrived at after

weighing the credibility of the officers involved in the mix-up)

that the untimely disclosure of the fingerprint evidence was not

17 the result of bad faith on the part of the police or the prose­

cution but, rather, had been caused by a police miscommunication.

Similarly, the state habeas court found that the trial court had

not intended to goad Buckley into moving for a mistrial. As the

state habeas court pointed out, the trial court's initial pre­

ference was to grant Buckley a continuance to evaluate the new

evidence and prepare an appropriate defense; "Buckley's response

to the situation[, i.e., reguesting a mistrial,] was a product of

his own free will."

Because of the strength of the evidence countering Buckley's

assertion that the prosecution and/or the trial court provoked

him into moving for a mistrial, I am not persuaded that his

contention is "highly probable" so as to meet the clear and

convincing evidence standard demanded by

(e)(1). Thus, I hold that petitioner has not established that

the contested findings are unreasonable in light of the evidence

presented in the prior state court proceedings. See

(d) (2) .

IV. CONCLUSION

For the foregoing reasons, I grant the Commissioner's motion

for summary judgment (document no. 21). All other pending

motions, including Buckley's motion to strike respondent's

18 objection to petitioner's request for findings of fact and

rulings of law (document no. 33), are dismissed as moot.

SO ORDERED.

Paul Barbadoro Chief Judge

July 17, 1998

cc: Gerald Buckley, pro se Cynthia White, Esq.

19