Morehouse v. NH State Prison CV-98-304-M 04/09/99 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Patrick Morehouse, Petitioner

v. Civil No. 98-304-M

Michael J. Cunningham, Warden New Hampshire State Prison Respondent

O R D E R

Patrick Morehouse's pro se petition for writ of habeas

corpus (

) argues that his 1981 conviction for

attempted murder violated the double jeopardy provision of the

federal constitution, as well as his rights to due process, egual

protection and effective assistance of counsel. Petitioner has

filed a motion for summary judgment and respondent has filed

motions to dismiss and for summary judgment.

On March 15, 1979, Petitioner was convicted of attempted

murder after a jury trial in Hillsborough County Superior Court,

and was sentenced, on March 19, 1979, to an extended term of 10

to 30 years imprisonment. Petitioner appealed his conviction to

the New Hampshire Supreme Court, arguing that (1) the state

failed to present sufficient evidence that petitioner intended

the death of his victim; (2) that he was not given notice that he

could receive an enhanced sentence for a crime involving

exceptional cruelty or depravity; (3) that the facts on which his

enhanced sentence was based were not found by a jury beyond a

reasonable doubt; and (4) that the court failed to make specific factual findings supporting an enhanced sentence. The New

Hampshire Supreme Court rejected each of petitioner's claims but,

on rehearing, reversed petitioner's conviction on a different

ground — an erroneous reasonable doubt instruction. See State v.

Morehouse,

(1980).

Petitioner was retried and was again convicted and sentenced

to an enhanced 10 to 30 year prison term. Petitioner appealed

his second conviction to the New Hampshire Supreme Court, arguing

(1) that the state had not presented sufficient evidence of

intent to kill and (2) that petitioner was entitled to both

notice of the possibility that an enhanced sentence could be

imposed, and a jury determination beyond a reasonable doubt of

facts supporting an enhanced sentence.

The New Hampshire Supreme Court ordered petitioner's counsel

to "file a memorandum explaining why the issues in this case are

different from those considered by the court in [State v.

Morehouse,

]." (Appendix G to Respondent's Answer

(hereinafter cited as "App. __")) Petitioner responded that "the

issues which would be briefed and argued in the [second] appeal

would be identical to those argued and briefed in [the previous

appeal]." (App. H.) The New Hampshire Supreme Court then

summarily affirmed petitioner's second conviction, since

resolution of the issues presented were subject to controlling

precedent — Morehouse's own earlier case.

On March 8, 1996, Petitioner filed a petition for writ of

habeas corpus in this court. Civil No. 96-138-B, that, after two

2 amendments, was dismissed without prejudice as a mixed petition.

See Rose v. Lundv,

(1982). Petitioner's

request for a certificate of appealability from the First Circuit

Court of Appeals, which the court treated as a request for a

certificate of probable cause, was denied on December 17, 1997.

Petitioner then filed, on December 29, 1997, a petition for

writ of certiorari to the New Hampshire Supreme Court "to inspect

for irreqularities the procedures and methods th[e] Court

utilized when it affirmed the petitioner's direct appeal" of his

second conviction. (App. P.) The petitioner presented the

followinq issues to the New Hampshire Supreme Court: (1) whether

he was deprived of effective assistance of counsel when the court

summarily affirmed his conviction without orderinq a transcript

of the retrial; (2) whether he was deprived of due process, equal

protection and effective assistance of counsel when the court

directed his counsel to file a memorandum explaininq how the

issues raised differed from those raised in his prior appeal and

to indicate which witness testimony need not be transcribed; (3)

whether he was deprived of due process when he was not notified

that he could receive an extended sentence; (4) whether he was

deprived of due process and equal protection when the court

summarily affirmed his conviction three days before the New

Hampshire leqislature amended the extended sentencinq statute to

require pre-trial notice; and (5) whether the superior court on

retrial made factual findinqs sufficient to support a

determination of exceptional cruelty or depravity that were also

3 different enough from the facts used to prove the underlying

crime to not subject petitioner to double jeopardy. On April 2,

1998, the Supreme Court denied Morehouse's petition for writ of

certiorari.

Petitioner then filed a second habeas petition in this

court, on May 11, 1998. He advanced the following grounds for

his petition: (1) The New Hampshire Supreme Court deprived him of

due process, egual protection, and effective assistance of

counsel when, on August 25, 1981, it summarily affirmed his

conviction without first obtaining transcripts of his retrial;

(2) the state did not present sufficient evidence to prove

petitioner's guilt beyond a reasonable doubt; (3) imposition of

an enhanced sentence subjected him to double jeopardy, and

failure to give him notice that an enhanced sentence could be

imposed violated his rights under the Fifth, Sixth, Ninth, and

Fourteenth Amendments of the United States Constitution; and (4)

he was deprived of effective assistance of counsel on appeal.

Petitioner also attempted to incorporate, in support of his

petition, "'EACH AND EVERY FACTUAL GROUND' as appealed to the New

Hampshire Supreme Court in State v. Morehouse,

(1980)." (Emphasis omitted.)

Discussion

Respondent moves to dismiss Morehouse's petition under Rule

9(a) of the Rules Governing § 2254 cases, which provides:

A petition may be dismissed if it appears that the state of which the respondent is an officer has been

4 prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.

Respondent argues that the petitioner had knowledge of all

grounds for his petition by August 25, 1981, when the New

Hampshire Supreme Court summarily affirmed his conviction, yet he

failed to file a habeas petition until March 8, 1996, after the

stenographic records of his trial had been destroyed according to

superior court practice.

Because the court dismisses petitioner's petition on

alternative grounds, however, it need not resolve respondent's

Rule 9(a) argument. Accordingly, respondent's motion to dismiss

is denied without prejudice.

Both petitioner and respondent have moved for summary

judgment. Respondent argues, inter alia, that some of

petitioner's claims - namely, (1) that the New Hampshire Supreme

Court's summary affirmance of his conviction violated his rights

to due process, egual protection, and effective assistance of

counsel; (2) that imposition of an enhanced sentence violated

double jeopardy principles; and (3) that he received ineffective

assistance by his appellate counsel - are unexhausted.

"[T]he exhaustion principle holds, in general, that a

federal court will not entertain an application for habeas relief

unless the petitioner first has fully exhausted his state

remedies in respect to each and every claim contained within the

application." Adelson v. DiPaola,

(1st Cir.

5 1997) . To satisfy the exhaustion requirement, the petitioner

must fairly present his federal claim to the state courts.

Picard v. Connor,

(1971). It is not fair

presentation of a claim, however, "where the claim has been

presented for the first and only time in a procedural context in

which its merits will not be considered unless 'there are special

and important reasons therefor.'" Castille v. Peoples,

(1989) (quoting Pa.Rule App.Proc. 1114).

Petitioner first asserted his ineffective assistance of

appellate counsel claim in his initial federal petition for writ

of habeas corpus, and first asserted the unconstitutionality of

the New Hampshire Supreme Court's summary affirmance of his

conviction in his second amendment to that petition. Following

dismissal of that petition, petitioner asserted those claims,

and, for the first time, his double jeopardy claim, in a petition

for writ of certiorari to the New Hampshire Supreme Court. Like

the petition for allocatur at issue in Castille, a petition for

writ of certiorari to the New Hampshire Supreme Court, requesting

it to exercise its original jurisdiction, will only be granted

"when there are special and important reasons for doing so."

N.H. Supreme C t . R. 11. Thus, Morehouse's petition for writ of

certiorari did not fairly present his claims to the state courts

for exhaustion purposes. See Castille,

.

The exhaustion requirement may still be satisfied if

petitioner's claims are procedurally barred under New Hampshire

law, see id.; however, petitioner has not shown this to be the

6 case. Indeed, respondent's brief plausibly argues that

petitioner could have filed (and still canfile) a state habeas

petition. While the exhaustion principle does not require a

petitioner to seek collateral relief in the state courts "based

upon the same evidence and issues already decided by direct

review," Castille,

(internal quotation marks

omitted), where he asserts an issue not presented on direct

appeal "he must use available state collateral procedures to

satisfy the exhaustion requirement." Lowe v. Scott,

(5th Cir. 1995) .

Because Morehouse's latest petition is still "mixed," i.e.,

it presents both exhausted and unexhausted claims, it should be

dismissed. See Rose v. Lundv,

; but cf.

(b)(2) (West Supp. 1998) ("An application for a

writ of habeas corpus may be denied on the merits,

notwithstanding the failure of the applicant to exhaust the

remedies available in the courts of the State."). Before

dismissing the petition, however, the court will allow Morehouse

yet another opportunity to amend his petition so that it asserts

only unexhausted claims. If he chooses not to do so, as is his

right, then the petition will be dismissed without prejudice to

permit him to fairly present (and exhaust) all unexhausted

federal claims to the State's courts.

7 Conclusion

For the foregoing reasons, the respondent's motion to

dismiss (document no. 15) is denied. The respondent's motion for

summary judgment (document no. 14) is granted and the

petitioner's motion for summary judgment (document no. 10) is

denied. Within fifteen days of the date of this Order plaintiff

may file a motion to amend his petition by withdrawing the

referenced exhausted federal claims, failing which his petition

for writ of habeas corpus will be dismissed, without prejudice,

for failing to exhaust available state remedies.

SO ORDERED.

Steven J. McAuliffe United States District Judge

April 9, 1999

cc: Patrick Morehouse Malinda R. Lawrence, Esg.