Krueger v . Warden CV-02-294-M 12/17/02 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Kyle Krueger, Petitioner

v. Civil N o . 02-294-M Opinion N o .

Jane Coplan, Warden, Respondent

O R D E R

Kyle Krueger seeks habeas corpus relief under the provisions

of

, arguing that the State of New Hampshire

subjected him to double jeopardy, in violation of his rights

under the Fifth and Fourteenth Amendments to the United States

Constitution, when it charged and convicted him of ninety

discrete criminal offenses arising from a single and continuous

course of sexual misconduct with a minor child. During a twenty-

five minute period, petitioner repeatedly, and mostly

successfully, coaxed a two-year-old child to perform oral sex

upon him. See State v . Krueger,

(2001). The

activity was videotaped, so it was feasible for prosecutors to

break down petitioner’s behavior into discrete criminal offenses, each offense based upon different, though temporally close,

conduct.

Respondent moves to dismiss the petition for failure to

exhaust remedies available to petitioner in New Hampshire’s

courts. Respondent is correct – a habeas petitioner in state

custody generally may not advance his or her federal

constitutional claims in a federal court unless and until the

substance of those claims has been fairly presented to the

state’s highest court. That “exhaustion” requirement, codified

at

(b) and ( c ) , is designed to provide state

courts with an initial “opportunity to pass upon and correct

alleged violations of [their] prisoners’ federal rights.” Picard

v . Connor,

7 0 , 275 (1971)(citation and internal

quotation marks omitted).

To establish exhaustion, petitioner must show that “he

tendered his federal claim [to the state’s highest court] in such

a way as to make it probable that a reasonable jurist would have

been alerted to the existence of the federal question.” Casella

v . Clemons,

8 , 20 (1st Cir. 2000)(citations and

2 internal quotation marks omitted). Respondent says petitioner

has not done so in this case.

Even reading petitioner’s brief to the New Hampshire Supreme

Court as favorably as possible, one cannot find a hint of a

federal claim. Petitioner did make a vague and, as the

Respondent characterizes i t , a “passing” reference to the Fifth

and Fourteenth Amendments, as well as the concept of “double

jeopardy,” in his Notice of Appeal. But, he never followed up by

identifying or briefing a federal double jeopardy claim. Rather,

petitioner’s brief merely argued that charging so many discrete

offenses was, under the circumstances, “an unjust application of

the [state criminal] statute.” Krueger,

; see

also Appendix to Memorandum of Law in Support of Respondent’s

Motion for Summary Judgment, Exhibit A (Document N o . 7 ) .

A petitioner can easily satisfy the exhaustion requirement.

There are no hard and inflexible rules; it is sufficient if the

issue is presented “face-up and squarely,” and in such a fashion

that “a reasonable jurist would have recognized the federal

constitutional dimensions of the petitioner’s claim.” Barresi v .

3 Maloney,

8 , 52 (1st Cir. 2002). Here, however,

petitioner seems to have made no attempt to alert the state

justices of a federal dimension to his direct appeal. He did not

cite specific provisions of the United States Constitution in his

brief; did not specifically raise a double jeopardy issue, in

those terms; never suggested a federal issue of any other kind;

did not rely upon federal precedents; did not claim any

particular right guaranteed to him by the Constitution; and,

finally, the brief filed by petitioner does not leave the reader

with any sense that his claim regarding “multiplicity” was in any

way related to federal law. See Nadworny v . Fair,

(1st Cir. 1989).

Under these circumstances, it is difficult to argue, much

less conclude, that petitioner presented his federal double

jeopardy claim “face-up and squarely” to the New Hampshire

Supreme Court, or that a reasonable jurist would have recognized

the federal constitutional dimension of his claim. See Adelson

v . DiPaola,

(1st Cir. 1997).

4 Although it cannot be said that petitioner fully exhausted

his federal claim, it is nevertheless apparent that his claim is

without merit and that exhausting available state remedies would

be entirely futile. This is particularly so because, although

petitioner did not raise or brief a federal double jeopardy

claim, and the New Hampshire Supreme Court did not consider or

resolve a federal claim, petitioner’s state double jeopardy claim

(such as it was) was legally indistinguishable from the parallel

federal claim he seeks to advance now. That i s , the result of

his state appeal would have been no different had the claim been

analyzed under federal, rather than state, law (state double

jeopardy law could not be less protective than the federal law of

double jeopardy).

Essentially, then, requiring petitioner to exhaust his

double jeopardy claim would be plainly futile, both because the

state supreme court found no state double jeopardy violation

(which effectively precluded its finding a federal violation),

and because the federal claim is without merit. The

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

anticipated situations such as that presented here, providing

5 that “[a]n 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.”

(b)(2). Although the AEDPA does not describe the

standard applicable when determining whether an unexhausted

petition should be dismissed on the merits (as opposed to

dismissing it without prejudice to permit complete exhaustion) it

seems reasonably clear that dismissal on the merits is

appropriate where exhaustion “plainly would be futile,” and the

federal claim is without merit. See Adelson,

;

Colon v . Johnson,

1 2 , 120 (S.D.N.Y. 1998).

The Double Jeopardy Clause provides that no person shall “be

subject for the same offence to be twice put in jeopardy of life

or limb . . . .” U.S. Const. Amend. V . Three types of

protection are afforded: “It protects against a second

prosecution for the same offense after acquittal. It protects

against a second prosecution for the same offense after

conviction. And it protects against multiple punishments for the

same offense.” North Carolina v . Pearce,

1 1 , 717

6 (1969) (footnotes omitted), overruled in part on other grounds,

Alabama v . Smith,

(1989).

Petitioner claims here, as he did in the state proceedings,

that by dividing his conduct into discrete acts and then charging

numerous separate offenses, the prosecution subjected him to

“multiplicious” indictments, which put him in jeopardy of

multiple punishments for the same offense. That i s , petitioner

reiterates in every material respect what he argued before the

New Hampshire Supreme Court, although here he puts the argument

in federal dress. “An indictment is multiplicious when a single

offense is charged in more than one count, and the Double

Jeopardy Clause of the Fifth Amendment prohibits multiple

punishment for a single offense. However, it is the role of [the

legislature] to define crimes and to determine the appropriate

punishment for these offenses. If [the legislature] defines the

crimes charged as separate and distinct offenses, an accused may

be charged with these offenses separately.” United States v .

Serino,

2 4 , 930 (1st Cir. 1987)(citations and internal

punctuation omitted).

7 Here, petitioner describes neither a multiple prosecution

nor a multiple punishments case in his habeas petition. While

the state prosecutors’ exercise of charging discretion has been

properly questioned in this case,1 still, each indictment rested

upon separate and distinct factual predicates. Material facts

necessary to prove one offense charged were different from the

material facts necessary to prove each other charged offense.

Under New Hampshire law, each separate act or attempted act

of fellatio constituted a distinct offense, and could not be

consolidated into one count alleging a general course of conduct

involving several incidents of intentional touching. See State

v . Krueger,

; State v . Patch,

(1991)(error to consolidate a number of separate felonious sexual

assault offenses in one count of an indictment under a general

1 The New Hampshire Supreme Court was decidedly critical of the prosecution’s decision to charge ninety separate offenses arising from the repugnant twenty-five minute episode depicted on the videotape. State v . Krueger,

4 1 , 543-44 (2001)(“We do believe, however, that it is important to exercise discretion with more circumspection when charging crimes under these circumstances. . . [W]e place a great deal of responsibility upon prosecutors to exercise discretion without vengeance when charging a particular defendant. Unfortunately, the manner in which the indictments were charged in this case raises the specter of prosecutorial over-zealousness.”).

8 plea of a course of conduct involving several incidents of

intentional touching); State v . Paulsen,

(1999).

The prosecution, technically speaking, was correct in separately

charging each criminal act.

S o , each indictment charged a distinct criminal act as

defined by state law2 (i.e., eighty counts of aggravated

felonious sexual assault, seven counts of attempted aggravated

felonious sexual assault, two counts of felonious sexual assault,

and one count of simple assault). Therefore, the indictments

were not multiplicious and petitioner was not subjected to the

risk of multiple punishments for the same offense. See

Blockburger v . United States,

(1932). Of course,

any doubt at all in that regard was completely removed when the

state trial judge consolidated all of the convictions for

2 See e.g., State v . Patch,

(“An indictment is duplicitous when it charges two or more offenses in one count. Each act of sexual contact . . . constitutes a separate offense of felonious sexual assault when such contact is with a person less than thirteen years of age. . . . By alleging a ‘course of conduct involving several incidents of intentionally touching,’ the indictment at issue encompassed more than one offense.”)(citations omitted).

9 sentencing and imposed a sentence within the range applicable to

one offense of conviction. See Krueger,

.

Conclusion

While discretion, wisely exercised, should have led to a

different charging practice than actually occurred here, given

the incontrovertible video tape evidence and the discrete

criminal acts revealed, no double jeopardy issue arose from the

charges as brought. The collection of indictments were all tried

together in one proceeding. Petitioner was subjected to only one

trial and not to successive prosecutions arising from the same

course of conduct. He was not tried later for any offenses of

which he had previously been either convicted or acquitted. And,

because the state trial judge refused to follow the prosecution’s

lead, and, instead, consolidated all of the convictions for purposes of sentencing, petitioner was not subjected to multiple

punishment for what was essentially the same criminal conduct.

Thus, petitioner was punished only once, although convicted of 90

discrete offenses.

10 Because requiring petitioner to exhaust available state

remedies would be futile, and because the petition is without

substantive merit, it is dismissed.

SO ORDERED.

Steven J. McAuliffe United States District Judge December 1 7 , 2002

cc: Kyle Krueger Jonathan v . Gallo, Esq.

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