Davidson v . State of NH CV-97-589-PB 04/28/99

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Craig S . Davidson

v. Civil N o . C-97-589

The State of New Hampshire

MEMORANDUM AND ORDER

Craig Davidson entered a plea agreement with state

prosecutors and pleaded guilty to three counts of kidnapping with

the purpose to terrorize, one count of conspiracy to commit

kidnapping, and one count of burglary. He was sentenced to a

prison term of 18-36 years with 5 years of the minimum and 10

years of the maximum suspended upon good behavior. Approximately

two years after he was sentenced, Davidson filed a motion with the New Hampshire Superior Court seeking to have his sentence

reduced. The Superior court denied Davidson’s request and the

New Hampshire Supreme Court rejected his appeal.

Davidson argues in his federal habeas corpus petition that

his convictions must be vacated because state prosecutors

breached their plea agreement with him by: (1) recommending a

sentence in excess of the sentence specified in the agreement;

(2) disclosing a statement he gave to the police to a co- defendant in violation of the agreement; and (3) failing to

properly dispose of charges that the state agreed to dismiss as a

part of the agreement. He also argues that he is entitled to

habeas corpus relief because he was denied his right to due

process before and during the hearing on his sentence reduction

motion. I reject his arguments and dismiss Davidson’s petition.

I. BACKGROUND

At approximately 2:15 a.m. on July 1 8 , 1993, Davidson, his

wife, Gretchen Davidson, and her friend Chandra Chowanec arrived

at the home of Mary Ellen and David McDuffee in Gilford, New

Hampshire. They parked Chowanec’s automobile two driveways away

from the residence, donned black “ninja” clothing, night vision

equipment, and radio headsets, and entered the McDuffee residence

without invitation. Once inside, Craig Davidson used a stun gun on David McDuffee, Gretchen Davidson used a stun gun on Mary

Ellen McDuffee, and Chowanec used a stun gun on Scott McDuffee.

The Davidsons and Chowanec carefully devised and executed this

plan with the purpose of confining and terrorizing the McDuffees.

The co-conspirators met with more resistence than expected,

however, and eventually, the Davidsons fled the residence to

escape apprehension. Chowanec was captured by the McDuffees

-2- inside the residence. See T r . of Plea Hr’g, p p . 19-21.

Davidson pleaded guilty on January 1 1 , 1994 to three counts

of attempted kidnapping with the purpose to terrorize; one count

of conspiracy to commit kidnapping; and one count of burglary.

See id. at 2-8; 26-29. In exchange for these guilty pleas, the

state agreed to dismiss three counts of attempted murder and

conspiracy to commit murder; one count of conspiracy to commit

kidnapping with the purpose to murder; one count of burglary, and

two counts of criminal use of an electronic weapon. See id. at

2-8. The State also agreed to recommend prison sentences which,

in total, would not exceed a minimum of 18 years and a maximum of

40 years. Davidson agreed to argue for sentences totaling no

less than five years and no more than 15 years. See id. at 2 2 .

At the plea hearing, the court directed a probation officer to

conduct a presentence investigation and submit a report to the

court for use at the sentencing hearing. See id. at 3 0 .

The plea agreement required Davidson to “give the State of

New Hampshire a complete statement outlining his participation in

the planning, facilitating, and execution of the events that

transpired at the McDuffee residence on July 1 8 , 1993.” Letter

from Ramsdell to Barnes of 1/11/94. In a letter setting out the

terms of the plea agreement, one of the prosecutors made the

-3- following representation regarding the potential disclosure of Davidson’s sworn statement:

Finally, we have one issue that may not have been addressed as fully yesterday as it should have been. That i s , the discoverability of [Davidson’s] statement by his wife or her co-defendant. A truthful, inculpatory statement should be shielded from discovery [by co-defendants Chandra Chowanec and Gretchen Davidson] by our work product privilege . . . However, if [the Petitioner’s] statement can be deemed exculpatory for either his wife or Chandra Chowanec then . . . we will be obligated to disclose the contents of the statement to their attorneys.

Id. The prosecutor also requested that defense counsel notify

him immediately if any of the agreement’s terms were inconsistent

with his understanding of the agreement. Defense counsel did not

challenge the prosecutor’s representations.

Davidson provided the sworn statement prior to entering his

plea on January 1 1 , 1994. On or about January 1 4 , 1994, as

expected, co-defendant Chowanec’s counsel filed a motion to discover Davidson’s statement. After determining that the

statement contained potentially exculpatory material as defined

in Brady v . Maryland,

(1963), and Giglio v . United

States,

(1972), the prosecutors released a copy of

the statement to Chowanec’s counsel. Davidson’s counsel was

simultaneously notified of the statement’s release on January 2 1 ,

1994, but failed to offer any objection to the disclosure.

-4- Upon receipt of Davidson’s statement, Chowanec moved for a

hearing to determine whether Davidson would have to testify at

her upcoming trial. At that February 4 , 1994, hearing, Davidson

invoked his right against self-incrimination. See T r . of

“Richards Hearing” May 1 3 , 1994 at 3 . Chowanec then filed a

motion to have Davidson immunized pursuant to

in order to elicit his testimony as a defense

witness. The state objected, claiming that Davidson’s statement

was neither “directly exculpatory,” nor at “highly material

variance” from its evidence against Chowanec, and thus did not

satisfy the immunity requirements established in State v . Farrow,

(1978), and State v . Monsalve,

(1990).

A copy of Davidson’s statement was furnished to the court, and

after a second hearing and a review of the statement, the court

concluded that Davidson should be granted immunity because his

testimony “would present a highly material variance from the

State’s evidence . . . .” Order, May 1 6 , 1994. Although a copy

of the court’s order was furnished to Davidson’s counsel, he did

not object to the immunity order or otherwise challenge the

court’s conclusion that his statement was exculpatory to

Chowanec. Davidson did not testify at Chowanec’s trial.

-5- At Davidson’s sentencing hearing on June 2 2 , 1994, the

prosecutors recommended a sentence of 22-1/2 to 45 years, with 4-

1/2 years of the minimum and 5 years of the maximum suspended.

The probation officer assigned to the case recommended a higher

sentence than the prosecutors agreed to recommend. The court,

however, sentenced Davidson to a total of only 18-36 years, with

5 years of the minimum and 10 years of the maximum suspended.

See T r . of Sentencing Hr’g p p . 52-55.

Two years later, on June 2 0 , 1996, Davidson, acting pro se,

filed a motion for sentence reduction in superior court pursuant

to

. The state objected. New

Hampshire State Prison Warden Michael Cunningham filed a summary

of Davidson’s activities, and despite noting that Davidson had

“done well to date,” he concluded with the statement: “I do not

recommend a sentence modification.”

The court held a sentence reduction hearing on November 1 5 ,

1996. In the five months between his petition for sentence

reduction and the hearing, Davidson filed at least eight other

pleadings, including five separate motions for injunctive relief,

a motion for summary judgment, a motion for compensatory damages,

and a motion for punitive damages. These pleadings raised two

clear claims: (1) that the state violated the terms of the plea

-6- agreement by releasing a copy of his statement to Chowanec without first seeking a judicial determination that the statement contained exculpatory material; and (2) that the state violated the plea agreement by sending copies of Davidson’s dismissed indictments to the prison system. Relying on these two claims, Davidson asked the court to (a) vacate the plea agreement and order his immediate and unconditional release from custody; (b) issue a cease-and-desist order prohibiting the state from maintaining copies of the dismissed indictments in his prison file; (c) issue contempt citations and institute disciplinary actions against then-Attorney General Jeffrey Howard and the attorneys who prosecuted the case; and (d) order the expungement of his criminal record. The state objected, asserting, inter alia, that Davidson’s claims exceeded the proper scope of a sentence reduction hearing.

At the hearing, the state renewed its objection to the court’s consideration of any motion other than the request for sentence reduction. In light of Davidson’s pro se status, however, and because he had subpoenaed four witnesses to testify about matters related to the state’s alleged breach of the plea agreement, the superior court chose to entertain these extraneous issues.

-7- Prior to the commencement of the hearing, the prosecutor

asked the court to excuse one of Davidson’s subpoenaed witnesses,

Lieutenant Daniel Torres, because Torres did not know Davidson,

had no personal knowledge of the relevant facts, and reported

that he actually had to call Davidson into his office the day

before the hearing simply to be able to identify him. See T r . of

Mot. Hearing at 3 . Davidson alleged that Torres’ testimony was

crucial because Torres had signed a prison classification sheet

which contained an erroneous handwritten summary of Davidson’s

convictions - which Davidson claimed constituted a breach of his

plea agreement. Davidson also sought to elicit testimony from

Torres that five months earlier, he had asked Torres to correct

the erroneous notations, and that Torres had refused to do s o .

See

. The court granted the State’s request to excuse

Torres, reasoning that the content of the prison file would speak

for itself and that Torres could offer no other meaningful

testimony since he had no recollection of the events identified

by Davidson. See

At the sentence reduction hearing, Cindy Belanger, the

Administrator of Offender Records at the New Hampshire State

Prison, testified that she made the erroneous handwritten

notation describing the nature of Davidson’s convictions in the

-8- margin of a document in his prison record. This “shorthand”

description mistakenly stated that Davidson had committed the

offenses of conspiracy to commit kidnapping and attempted

kidnapping with the purpose to murder (as was alleged in the

dismissed Count I of each two-count indictment), rather than with

the purpose to terrorize (as alleged in Count II of each

indictment and agreed to in the plea agreement). While these

notations served as a quick reference to the underlying charges,

Belanger noted that the official documents remained in the

record, and that her inaccurate shorthand notations did not

result in any adverse consequences to Davidson. She testified

that when she became aware of the erroneous notations, she

immediately crossed out the inaccuracies, wrote “error” beside

them, and wrote in the correct information. She added that

Davidson’s status as a medium-security inmate was not affected in

any way by the clerical errors, noting more specifically that his

privileges and access to educational and vocational

opportunities, medical and mental health treatment, and other

prison programs would not have been any different in the absence

of the errors. See

. Finally, Belanger noted that

she was the only person authorized to make corrections to an

inmate’s file, which was why Lieutenant Torres refused Davidson’s

-9- request that he make the changes himself. See

at 7 4 .

The court denied Davidson’s motion for sentence reduction,

denied his request for money damages without prejudice, and

directed the state to submit additional pleadings discussing: (1)

whether the state violated the plea agreement by releasing

Davidson’s statement to Chowanec’s counsel; and (2) whether the

Department of Corrections violated the plea agreement by

inaccurately reflecting the convictions in Davidson’s prison

record. See

. The court then issued a written

order denying Davidson’s requests for injunctive relief except

that the court ordered defendants to correct any prison records

that inaccurately reflected Davidson’s convictions. The court

also made an express finding that Belanger’s inaccurate notations

“in no way affected the classification of the [Petitioner] or in

any way limited his progress within the State Prison system.”

Order, November 1 5 , 1996.

Pursuant to the court’s order, the state filed a written

pleading addressing the two issues identified above. Davidson

responded by filing seven additional motions, including motions

for contempt, motions to reverse for clear error, motions to

subpoena evidence, and another motion for summary judgment. On

April 1 7 , 1997, the court issued a written order responding to

-10- all pending motions. This order held that (1) the state did not

violate the plea agreement by releasing Davidson’s sworn

statement, as the agreement did not require the state to obtain a

judicial determination of the exculpatory nature of Davidson’s

statement before releasing it to Chowanec; and (2) even if the

plea agreement required a judicial determination of the

exculpatory nature of Davidson’s statement, given that the court

subsequently determined that the statement was “directly

exculpatory” to co-defendant Chowanec, Davidson suffered no

adverse consequences from its release. See Order, April 1 7 ,

1997.

The court also rejected Davidson’s second claim that the

state, through the probation office, violated the plea agreement

by “reinstating” the dismissed charges. In denying this claim,

the court held that the inaccurate notations in Davidson’s prison

file were made inadvertently and without bad faith on the part of

any state actor, and caused Davidson no adverse consequences.

Davidson’s other motions were denied.

In June 1997, Davidson filed a notice of appeal with the New

Hampshire Supreme Court raising 25 separate issues pertaining to

the proceedings in the lower court. In the interim, on November

1 7 , 1997, Davidson filed a petition for a writ of habeas corpus

-11- with this court, claiming that the New Hampshire Supreme Court’s

five-month delay in ruling on his appeal demonstrated the

unavailability or ineffectiveness of state corrective processes.

Although the New Hampshire Supreme Court declined to accept

Davidson’s appeal on December 1 8 , 1997, he failed to bring the

declination order to my attention. Consequently, I denied his

federal writ of habeas corpus for failing to exhaust state

remedies on March 5 , 1998. In light of the New Hampshire Supreme

Court’s December 1 8 , 1997, declination order, however, the First

Circuit Court of Appeals vacated my March 5 , 1998, order on June

1 1 , 1998, and remanded the case here for further proceedings.

II. STANDARD OF REVIEW

Davidson filed his habeas corpus petition on November 1 9 ,

1997 - after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L . N o . 104-

132,

. He is therefore subject to AEDPA’s

amendments to the federal habeas statute,

. See

Lindh v . Murphy,

(1997). As amended,

(d) provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court

-12- proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary t o , or involved an unreasonable application o f , clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Additionally,

(e) states:

In a proceeding instituted by an application for a writ of habeas corpus. . . , a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

Noting that “AEDPA is hardly a model of clarity,” O’Brien v .

Dubois,

6 , 20 (1st Cir. 1998), the First Circuit

recently held that in assessing a Petitioner’s claims, the

federal habeas court must engage in an independent, two-step

analysis. See

at 2 4 .

In the first step, the habeas court should determine whether the United States Supreme Court has “prescribed a rule that

governs Davidson’s claim.”

If s o , the court must evaluate

whether the state court’s decision is “contrary to” the Supreme

Court’s governing rule. “To obtain relief at this stage, a

habeas petitioner must show that Supreme Court precedent requires

an outcome contrary to that reached by the relevant state court.”

-13-

. According to the First Circuit, in the first step of the analysis:

the key inquiry, at bottom, is whether a Supreme Court rule - by virtue of its factual similarity (though not necessarily identicality) or its distillation of general federal law precepts into a channeled mode of analysis specifically intended for application to variant factual situations - can fairly be said to require a particular result in a particular case.

at 2 5 .

When no Supreme Court precedent is dispositive of the

petitioner’s claim, the habeas court must take the second step -

determining “whether the state court’s derivation of a case-

specific rule from the Court’s generally relevant jurisprudence

appears objectively reasonable.”

At this step, for the writ

to issue, the petitioner bears the burden of showing that “the

state court decision [is] 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.”

A

federal habeas court also must accept the state court’s

resolution of the factual issues unless the applicant for habeas

relief can establish by clear and convincing evidence that the

state court determined the facts incorrectly. See

(e)(1). I apply these standards in reviewing Davidson’s

petition for a writ of habeas corpus.

-14- III. DISCUSSION

A. The Plea Agreement

Davidson alleges that the state breached the plea agreement

(1) when the prosecution, via the probation officer, submitted a

presentence investigation report (“PSI”) recommending a higher sentence than the prosecutors agreed to recommend; (2) when the

prosecution failed to obtain judicial confirmation of the

exculpatory nature of Davidson’s statement before disclosing it

to his co-defendants; and (3) when the prosecution effectively

reinstated charges which had been dismissed as part of the plea

agreement, by forwarding copies of the dismissed charges to the

prison where they were included in Davidson’s file. I discuss

each claim in turn.

1. The PSI

Davidson concedes that the prosecutors fulfilled their

obligation as set forth in the plea agreement to recommend a

prison sentence totaling no less than 18 years and no more than

40 years. Nevertheless, he argues that the probation officer

violated the agreement by recommending a higher sentence.

Davidson’s argument based on the PSI fails for several

reasons. First, he is barred from raising his claim in a federal

habeas corpus petition because he failed to raise it during the

-15- sentencing hearing. This procedural default constitutes an

“independent and adequate” state ground justifying the New

Hampshire Supreme Court’s decision to reject his appeal. See New

Hampshire v . Hogdon,

6 0 , 662 (N.H. 1999) (“Any objection

not raised at trial is deemed waived.”); State v . Ryan,

(N.H. 1992) (same). As Davidson has failed to allege

any “cause and prejudice” that would excuse his default, he is

barred from raising his claim in federal court. See Stewart v .

LaGrand, 119 S . C t . 1018, 1019 (1999) (noting that a claim not

raised in state court proceedings is procedurally defaulted from

habeas review absent a showing of cause and prejudice, or a

fundamental miscarriage of justice to excuse the default;

Levasseur v . Pepe,

8 7 , 192 (1st Cir. 1995) (“[where a

petitioner . . . has procedurally defaulted on his claim, we

reach the merits on habeas corpus review only if the default can

be excused by establishing either cause for the default and

actual prejudice resulting therefrom, or that failure to consider

the claim will result in a ‘substantial miscarriage of

justice’”).

Davidson’s claim also fails on its merits. The probation

officer has a duty under New Hampshire law to assist the court by

making a sentencing recommendation. N.H. Rev. Stat. Ann. §

-16- 651:4. When a probation officer acts in this capacity, he is serving as an “officer of the court rather than as an agent of the prosecutor.”

-A:12 I . Assuming for purposes of analysis that state prosecutors could bind the probation officer to a specific sentencing recommendation - a very doubtful proposition - the record in this case does not support Davidson’s claim that the plea agreement imposed such a limitation on the probation officer. The agreement does not mention the Department of Corrections, for whom the probation officer works, and Davidson has failed to identify any other evidence that would support a conclusion that the parties intended to limit the power of the probation officer to formulate his own independent sentencing recommendation.

Finally, even if the plea agreement could be construed to obligate the probation officer to recommend the sentence specified in the plea agreement, the probation officer’s breach of the agreement was of no consequence to Davidson as the court disregarded the PSI recommendation and sentenced Davidson to a shorter prison term than both the probation officer and the state prosecutors recommended.

-17- 2. Davidson’s Statement

Davidson next argues that the prosecutors breached the plea

agreement by disclosing his statement to co-defendants without

first obtaining a determination from the court that the statement

was exculpatory.

The state superior court considered this argument and

rejected i t , finding that the plea agreement did not obligate the

state to obtain a ruling that Davidson’s statement was

exculpatory before releasing it to his co-defendants. The court

alternatively concluded that Davidson was not harmed by the

prosecutor’s failure to obtain judicial review of the statement

before releasing it because the court later determined that the

statement was exculpatory. As I concur with the state court’s

ruling on both points, I reject Davidson’s claim.

3. The Dismissed Charges

Davidson also argues that the State violated his plea

agreement by effectively reinstating the charges the state agreed

to dismiss as a part of the plea agreement. He suggests that

such reinstatement occurred when copies of the dismissed charges

accidentally were sent to the New Hampshire State Prison and

erroneous notations about his convictions were entered into his

prison file. The state superior court determined that the state

-18- did not violate the plea agreement by sending the dismissed

charges to the prison because the charges were not actually

“reinstated,” and because the inclusion of those charges in

Davidson’s prison file was an administrative error which had no

adverse impact on him. I agree with the state court’s

conclusions on these issues and, therefore, reject Davidson’s

claim.

B. The Sentence Reduction Hearing

Davidson argues that his right to due process was denied

because of the way in which the proceedings on his motion for

sentence reduction were conducted. Specifically, he complains

that (1) he was denied transcripts and discovery prior to the

hearing; (2) he was denied the right to call Lieutenant Torres as

a witness during the hearing; (3) the prosecutors made a number

of fraudulent representations during the hearing and engaged in

other forms of misconduct; and (4) the court should have recused

itself from presiding over the issue. I reject Davidson’s due

process claims both because he lacks a constitutionally protected

liberty interest in obtaining a sentence reduction and because

his claims are without factual support in the record.

-19- 1. Lack of a Protected Liberty Interest

As the First Circuit Court of Appeals has recognized, “[a]

viable procedural due process claim must demonstrate a

deprivation by state action of a constitutionally protected

interest in life, liberty, or property . . . without due process

of law.” Romero-Barcello v . Hernandez-Agosto,

3 , 32

(1st Cir. 1996) (internal quotation marks and citation omitted).

In determining whether a state statute vests a prison inmate with

a liberty interest protected by the due process clause, the court

has stated that “[s]tate-created liberty interests ‘will be

generally limited to freedom from restraint which, while not

exceeding the sentence in such an unexpected manner as to give

rise to protection by the Due Process Clause of its own force

. . . nonetheless imposes atypical and significant hardship on

the inmate in relation to the ordinary incidents of prison

life.’” Hamm v . Latessa,

4 7 , 954 (1st Cir. 1995)

(quoting Sandin v . Conner,

7 2 , 484 (1995)).

Davidson based his motion for sentence reduction on

which provides in pertinent part that Notwithstanding any other provision of law, except as provided in subparagraphs (a),(b), and ( c ) , the sentence to imprisonment of any person may be suspended by the sentencing court at the time of imposition of the sentence or at any time thereafter in

-20- response to a petition to suspend sentence which is timely brought in accordance with the limitations set forth below in subparagraphs (a),(b), and ( c ) . The New Hampshire Supreme Court has determined that a trial court

is never obligated to suspend a sentence pursuant to

. See State v . W.J.T. Enterprises, Inc.,

9 0 , 496 (1992); State v . Gibbons,

2 0 , 322-23

(1992). Accordingly, the court has held both that a request to

suspend a sentence may be denied without a hearing, see State v .

Roy,

7 , 98 (1993), and that the sentence suspension

statute does not give rise to a constitutionally protected

liberty interest in obtaining a suspended sentence. See Gibbons,

135 N.H. at 322-23.

The Ninth Circuit Court of Appeals recently considered

whether a federal statute granting the United States Bureau of Prisons the authority to suspend an inmate’s sentence in certain

circumstances gives rise to a constitutionally protected liberty

interest. See Jacks v . Crabtree,

(9th Cir. 1997),

cert. denied, 118 S . C t . 1196 (1998). The statute at issue in

that case provides in pertinent part that

The period a prisoner convicted of a non- violent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but

-21- such a reduction may not be more than one year . . . .

(e)(2)(B). Inmates who had completed treatment

programs but who had been denied early release brought habeas

corpus petitions alleging, among other things, that the Bureau of

Prisons had denied them their right to due process by

categorically ruling that they were ineligible for a sentence

reduction. In rejecting this argument, the court concluded:

We also reject petitioners’ claim that section 3621(e)(2)(B) creates a due process liberty interest in the one-year sentence reduction. Not only is section 3621(e)(2)(B) written in nonmandatory language, but denial of the one-year reduction doesn’t “impose[] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 472 U.S. at 484. In fact, denial merely means that the inmate will have to serve out his sentence as expected.

Id. at 986 n.4. I agree with the New Hampshire Supreme Court and the Ninth

Circuit that a discretionary sentence recommendation statute such

as

does not give rise to a

constitutionally protected liberty interest in obtaining a

sentence reduction because the denial of a request for sentence

reduction does not “impose [ ] atypical and significant hardship

on the inmate in relation to the ordinary incidents of prison

-22- life.” See Jacks,

n.4. Instead, the “denial [of

a request for a sentence reduction] merely means that the inmate

will have to serve out his sentence as expected.”

Accordingly, I reject Davidson’s habeas corpus claim to the

extent that it is based on any alleged defects in the process he

was accorded in connection with his motion for sentence

reduction.

2. Merits

Even if I were to conclude that Davidson has a

constitutionally protected liberty interest in having his

sentence reduced, I would reject his due process claim because

the state accorded him all of the process that he was due.

First, the record demonstrates that Davidson was given a

full hearing on his motion and was allowed to present virtually

all of the evidence he sought to introduce. The Superior Court

issued subpoenas in accordance with Davidson’s motions and all

four of the individuals he subpoenaed appeared at the hearing.

Three of his four witnesses were permitted to testify, and the

fourth, Lieutenant Torres, was excluded only because he had no

relevant evidence to provide. The prison file, which was the

subject of an ex parte motion to subpoena evidence, and the court

file, containing the original charging documents and waivers of

-23- indictments, the terms of the plea agreement, the mittimuses, and

the sentencing orders, were available for reference at the

hearing. Finally, the State stipulated at the hearing that it

had not moved to preclude discovery of Davidson’s statement by

counsel for co-defendant Chowanec - eliminating any potential

dispute over that issue.

The only discovery information denied to Davidson was (1)

statistical evidence for the preceding ten-year period on the

number of sentences imposed by the superior court pursuant to

guilty pleas that were later reduced, and the minimum and maximum

sentences actually imposed for three specified statutory

offenses, separated by gender; (2) copies of “all motions,

objections, responses, and answers filed by the prosecution”

during the course of Davidson’s prosecution; and (3) all

pleadings filed by the State Attorney General’s Office in any

case between 7/1/93 and 10/15/96 containing the words “work

product” and discovery.” These requests were clearly overbroad

and unduly burdensome.

Davidson was able to garner the necessary information to

meaningfully present his sentence reduction motion to the court,

both through testimony and argument. See Ross V . Moffitt,

0 0 , 612 (1974)(noting that fundamental fairness entitles

-24- indigent defendants to “an adequate opportunity to present their

claims fairly within the adversary system”). He had access to

the witnesses and physical evidence necessary to support his

allegations. That is all that the constitution requires. See

Ake v . Oklahoma,

8 , 76 (1985)(describing the due

process guarantees that must be provided to an indigent

defendant, including the provision of a trial transcript “if the

transcript is necessary to a decision on the merits of the

appeal”)(citing Griffin v . Illinois,

(1956)).

Davidson has also failed to demonstrate that the prosecutors

made any fraudulent representations at the sentencing hearing or

that they otherwise engaged in any misconduct. Finally, he has

failed to identify any legally sufficient ground to support his

claim that the state court judge was biased against him.

In summary, Davidson has failed to show that Supreme Court

precedent “requires an outcome contrary to that reached by the

relevant state court.” O’Brien,

. Given the

strength of the evidence countering Davidson’s argument that his

due process right to “fundamental fairness” was violated by the

way the superior court conducted his sentence reduction hearing,

Davidson’s claim for habeas corpus relief is denied.

-25- CONCLUSION

As I have found each of Davidson’s allegations without

merit, his request for habeas corpus relief is denied. I further

conclude that Davidson has not made a substantial showing of the

denial of a constitutional right. Accordingly, I decline to issue a certificate of appealability.

SO ORDERED.

Paul Barbadoro Chief Judge

April 2 8 , 1999

cc: Craig Davidson, pro se

-26-