Graf v. Warden, NHSP CV-00-124-JD 04/12/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Carl Graf

v. Civil No. 00-124-JD Opinion No.

Warden, New Hampshire State Prison

O R D E R

The petitioner, Carl Graf, seeks habeas corpus relief,

pursuant to

, from his state court conviction

and sentence for sexual assault of a minor. Graf raises due

process issues arising from the state prosecutor's communication

with the state court's chief judge, the trial judge's rulings

made after his recusal from the case, the state supreme court's

delay in deciding his appeal, alleged police misconduct during

the preparation of his defense, and the trial court's decision to

exclude certain evidence from cross-examination. The parties

have filed motions for summary judgment and their objections.

Background

Carl Graf was indicted by a grand jury in September of 1994

on three counts of sexual assault, arising from charges made by a

an eleven-year-old boy. Trial was scheduled for April of 1995.

Prior to trial, Graf moved to dismiss the charges against him. contending in part that the state's contact with certain

witnesses interfered with his preparation for trial. The trial

court denied the motion, finding "that the scant facts submitted

by the defendant on this issue do not constitute an impermissible

interference with the defendant's right to prepare his case."

State v. G r a f , No. 94-S-180, 181, 182, April 6, 1995, at 2; Resp.

Ex. L.

Counsel for Graf requested a hearing before the trial judge

on the admissibility of privileged matters and a hearing was held

on April 10, 1995, to consider that issue, along with others.

After the hearing, Carroll County Attorney Carol Yerden called

the Chief Justice of the Superior Court to report that the trial

judge. Judge O'Neill, had not been civil to her during the

hearing.1 According to a letter written by Senior Assistant

Attorney General Cynthia White to the New Hampshire Supreme

Court, after oral argument on Graf's appeal of his convictions,

Yerden believed Judge O'Neill was fair to the state but was

concerned that others would interpret his conduct as being

unfair.

On April 12, 1995, Judge O'Neill held an in-chambers

conference with counsel for the state and Graf. Judge O'Neill

1Yerden had previously complained to the chief judge about Judge O'Neill's demeanor in other cases.

2 indicated that he intended to recuse himself from the case and

"asked all counsel whether there was any objection to his

rendering a decision on the defendant's motion. . . . The

defendant's counsel indicated that he had no objection, and the

court issued its order the next day." State v. G r a f ,

(1999). Judge O'Neill issued both his recusal order and

his order denying the defendant's motion pertaining to the

admissibility of privileged matters on April 13. "Although the

defendant filed a motion to reconsider that order, the defendant

did not raise any objection to the order having been issued by

the recused judge."

The trial was rescheduled to begin on May 8, 1995, before

Judge Fauver. Judge Fauver ruled on the defendant's motion to

reconsider Judge O'Neill's order on the admissibility of

privileged matters. The motion to reconsider was denied. Graf's

counsel was not permitted to introduce privileged information

about the victim of the charged sexual assaults during cross-

examination of the state's expert witness.

The jury found Graf guilty on all three sexual assault

counts and was sentenced to serve seven-and-one-half to fifteen

years in prison and two consecutive terms of six to twelve years,

suspended. Graf was sentenced on October 23, 1995, and filed his

notice of appeal in November of 1995. The New Hampshire Supreme

3 Court accepted his appeal on January 2 6 , 1 9 9 6 , and oral argument

was held on May 21, 1997. The supreme court affirmed Graf's

conviction in a decision issued on January 15, 1999, which was

modified by a decision issued on April 23, 1999.

Graf's first federal habeas petition was dismissed in August

of 1999 because it included unexhausted claims. Graf then filed

a state habeas petition, raising the unexhausted claims, which

was denied in December of 1999. After the New Hampshire Supreme

Court denied his appeal from the dismissal of his state habeas

petition, Graf again filed a petition in this court. In a

previous order (November 1, 2000), the court dismissed four

claims and parts of two others. The parties now move for summary

judgment with respect to the remaining issues.

Standard of Review

Summary judgment is appropriate in habeas proceedings, as in

other civil actions, when "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law." Fed. R. Civ. P. 56(c); see also Fed. R.

Civ. P. 8 1 ( a ) (2). " [A]n issue is 'genuine' if the evidence

presented is such that a reasonable jury could resolve the issue

4 in favor of the nonmoving party and a ''material' fact is one that

might affect the outcome of the suit under governing law."

Fajardo Shopping Ctr. v. Sun Alliance Ins. C o . ,

, 7

(1st Cir. 1999). The court considers cross motions for summary

judgment separately, "drawing inferences against each movant in

turn." Reich v. John Alden Life Ins. C o . ,

(1st

Cir. 1997).

The standard of review of a petition seeking habeas relief

depends upon the nature of the state court's decision. If the

state court adjudicated the federal issue on the merits, a

deferential standard under § 2 2 5 4 ( d ) (1) applies. See Niland v.

H a l l ,

(1st Cir. 2002). When the state court

did not address the federal issue, however, the federal court

applies a de novo standard of review. See Fortini v. M u r p h y ,

, 47 ("After all, AEDPA imposes a requirement of deference

to state court decisions, but we can hardly defer to the state

court on an issue that the state court did not address."); accord

DiBenedetto v. H a l l ,

, 7 (1st Cir. 2001) .

In this case, the respondent asserts that the deferential

standard of § 2 2 5 4 ( d ) (1) applies. Graf does not apply any

standard in his arguments in support of his own motion or in

opposition to the respondent's motion, contending that it is

enough to simply make his argument. In addition, Graf explicitly

5 states that he does not dispute that the deferential standard

under § 2 2 5 4 ( d ) (1) applies.

Contrary to the parties' positions, it appears that the

state court decisions did not adjudicate the federal issues on

the merits. The court will determine the appropriate standard

with respect to each claim separately.

Discussion

The following issues remain in this case: (1) whether the

conversation between the prosecutor and the Chief Justice

concerning complaints about the trial judge, which lead to the

trial judge's recusal, and the recused judge's rulings on pending

motions constituted structural error in violation of due process;

(2) whether the trial court's exclusion of good character

evidence violated the compulsory process clause of the Sixth

Amendment; (3) whether delay in deciding the appeal violated due

process; (4) whether police misconduct occurred that interfered

with the preparation of Graf's case in violation of due process;

and (5) whether the trial court's decision to exclude privileged

matters from cross-examination of the state's expert witness

violated due process. The parties' motions for summary judgment

on these issues are resolved as follows.

6 I. Ex Parte Contact by the Prosecutor and Recusal of the Judge

As pled in his original petition and his first amended

petition, Graf claimed that "[a]n ex parte conversation between

the prosecutor and the Chief Justice of the Superior Court

concerning complaints the prosecutor had about the trial judge's

handling of Mr. Graf's case, which lead to the trial judge's

recusal after the first jury had been selected, violated Mr.

Graf's right to due process." In his second amended complaint,

Graf began with the same claim and then added "and the trial

judge's subsequent rulings on pending motions after his

disqualification, violated Mr. Graf's right to due process of law

warranting automatic reversal as a 'structural error.'"

For purposes of summary judgment, Graf separates the events

into two parts. First, he contends that the prosecutor's call to

the Chief Justice was a due process violation because it was an

inappropriate ex parte communication with the court and an

improper attempt to "judge shop." Second, Graf contends that the

trial judge's decision on Graf's motion, after his recusal, was a

violation of due process constituting structural error. The

respondent argues that the issue of structural error is not

exhausted or is procedurally defaulted, that the New Hampshire

Supreme Court's decision was not contrary to due process, and

that no structural error occurred.

7 A. Exhaustion

Graf concedes that the issue of structural error was not

raised until this proceeding. He argues, however, that the

structural error issue need not have been exhausted because it

only affects the remedy he seeks. He also contends that the

respondent has waived the exhaustion issue by failing to raise it

immediately in response to his second amended complaint.

In a habeas proceeding, the respondent will not be deemed to

have waived the exhaustion requirement "unless the State, through

counsel, expressly waives the requirement." § 2 2 5 4 ( b ) (3). Since

there has been no express waiver of the exhaustion requirement

here, no waiver has occurred.

Graf is also incorrect that his claim of structural error is

not subject to the exhaustion requirement. In order to be

entitled to habeas relief, Graf must show that he has exhausted

the remedies available in the state courts or that state process

is not available. See § 2254(b) (1). The purpose of the

exhaustion requirement is to " e n s u r e [] that state courts have the

opportunity fully to consider federal-law challenges to a state

custodial judgment before the lower federal courts may entertain

a collateral attack upon that judgment." Duncan v. W a l k e r ,

, 178 (2001); accord Currie v. M a t e s a n z ,

(1st Cir. 2002).

8 "Exhaustion obligations mandate that a habeas petitioner

present, or do his best to present, his federal claim to the

state's highest tribunal." Adelson v. DiPaola,

(1st Cir. 1997). Trial error, which is reviewed for prejudice,

and structural error, which is per se prejudicial, state

different violations based on different legal analyses. See,

e . g . . United States v. Moiic a - B a e z ,

, 309 (1st Cir.

2000); Hardnett v. M a r s h a l l ,

(9th Cir. 1994).

On appeal to the New Hampshire Supreme Court, Graf focused

on the prosecutor's conduct stating that "[a] long line of

federal cases recognize the fact that misdeeds on the part of

agents for the State can be so outrageous as to rise to the level

of a due process violation." S u p p . Br. at 3, Resp. Ex. G. The

cases Graf cites pertain to whether actions by the police or

other government agents may constitute a federal due process

violation. Although Graf discusses the circumstance of his

pending motion on the admissibility of the privileged materials,

which was decided by Judge O'Neill after recusal, he cites no

cases pertaining to judicial recusal or bias in support of that

argument. Graf also asserted that the prosecutor's conduct had

caused him extreme prejudice.

The New Hampshire Supreme Court characterized the claim as

follows:

9 The defendant argues that the county attorney's conduct in contacting the chief justice of the superior court constituted prosecutorial misconduct that was of such an egregious nature that his due process rights were violated. In addition, the defendant contends that his due process rights were violated when, inter a l i a , after recusing himself, the judge ruled on the defendant's motion seeking admissibility of privileged matters relating to the victim.

G r a f ,

. The court considered the due process

claims under New Hampshire law rather than federal law, ruling

that the federal constitution provided no greater protection than

the state constitution. See i d .

The court held that the prosecutor's conduct did not violate

Graf's due process rights. The court then reviewed the history

of the recusal issue, noting that the failure of Graf's counsel

to object initially to having the decision made by Judge O'Neill

after recusal and Graf's subsequent failure to raise an issue

about the decision being made after recusal in his motion for

reconsideration and motion to dismiss. The court concluded that

"if we assume that the defendant properly preserved for appeal

the issue of whether the recused judge's ruling upon the

defendant's motion violated due process, we conclude that the

defendant has not demonstrated any prejudice and we find no

violation of his due process rights." I d . at 303. The record

confirms, and Graf does not argue otherwise, that the issue of

structural error was not presented to the New Hampshire Supreme

10 Court. Therefore, the claim was not exhausted.

Ordinarily, the inclusion of an unexhausted claim along with

exhausted claims would require appropriate disposition of the

unexhausted claim before the case could proceed. See, e.g.,

Duncan v. W a l k e r ,

, 182-83 (2001); Rose v. L u n d v ,

(1982). Instead, the respondent urges the court to

dismiss the unexhausted claim pursuant to § 2 2 5 4 ( b ) (2). Under §

2 2 5 4 ( b ) (2), the court may deny an unexhausted claim on the merits

without the delay otherwise required in dealing with a mixed

petition. See Rudenko v. C o s t e l l o ,

, at *4 (2d

Cir. March 20, 2002); Gattis v. S n y d e r ,

(3d

Cir. 2002).

B. The Prosecutor's Call to the Chief Justice

Graf contends that the prosecutor's call was an

inappropriate ex parte communication with the court, which

amounts to structural error. He asserts that he is not raising

an issue of prosecutorial misconduct, the issue addressed by the

New Hampshire Supreme Court on appeal. Instead, Graf states:

"Mr. Graf's argument is that the ex parte communication, the

resulting recusal by Judge O'Neill, and the resulting p o s t ­

recusal acts by Judge O'Neill, constitute due process

violations." O b j . at 6. Although far from clear, it appears

11 that Graf's argument is that the prosecutor's call to the Chief

Justice was an ex parte communication with the court relating to

the merits of the case, which Graf contends was structural error,

requiring dismissal of the charges against him.2

Because the claim of structural error was not adjudicated on

the merits by the state court, the issue is reviewed de novo.

See F o r t i n i , 257 F.3d at 47; see also Daniel v. C o c k r e l l ,

(5th Cir. 2002) (publication pages not a v a i l a b l e ) . In

order to be entitled to habeas relief in this context, Graf must

show that "he is in custody in violation of the Constitution or

law or treaties of the United States." § 2254(a).

Graf cites Carroll v. President & Comm'rs of Princess A n n e ,

(1968), in support of his claim. In C a r r o l l . the

Supreme Court held that an ex parte restraining order preventing

a political rally violated the First Amendment. See i d . at 181-

82. As such, Carroll appears to have no relevance to Graf's

claim, and Graf offers no analysis based on C a r r o l l .

Graf also cites Yohn v. L o v e ,

(3d Cir. 1996),

and Haller v. R o b b i n s ,

(1st Cir. 1969). In Y o h n ,

21he respondent understood Graf's claim as asserting prosecutorial misconduct in violation of due process, the issue addressed by the New Hampshire Supreme Court. As noted above, the structural error issue was not exhausted and is reviewed pursuant to § 2 2 5 4 (b) (2) .

12 after the trial judge ruled that a tape recorded conversation

with the defendant was inadmissible, during a recess, the

prosecutor called the chief justice of the Pennsylvania Supreme

Court to discuss the ruling. See Yohn, 76 F.3d at 512-13. The

chief justice called back and talked by telephone with the trial

judge and the prosecutor while defense counsel was present but

lacked a telephone. See i d . In response to the discussion, the

trial judge changed his ruling and allowed the tape recording

into evidence. See i d . at 514. The Third Circuit ruled that the

conversation, which involved the merits of the admissibility of

the tape without the participation of defense counsel, denied the

defendant's due process right to notice and an opportunity to be

heard. See i d . at 517. The court also concluded that the error

was not structural but instead required a showing of prejudice.

See i d . at 522-23.

In H a l l e r , "the prosecutor reported to the sentencing judge

in the absence of petitioner and his counsel a highly detrimental

hearsay statement as to petitioner's conduct."

.

The First Circuit concluded that the ex parte communication by

the prosecutor with the sentencing judge, on the merits of the

sentencing decision, violated due process. See i d . at 859-60.

The resulting trial error was subject to the harmlessness

13 analysis.3 See i d . at 860.

The record does not support Graf's suggestion that the

prosecutor engaged in ex parte communication regarding the merits

of Graf's case, unlike the circumstances in Yohn and H a l l e r . In

addition, such communication, even if it had occurred, would

constitute trial error subject to harmlessness review, not

structural error. Since nothing in the record indicates that

Graf was prejudiced by the prosecutor's call to the Chief

Justice, or that the call might have influenced the outcome in

any way, no basis exists on that ground for granting habeas

relief.

To the extent Graf argues that the prosecutor's call to the

Chief Justice was a form of "judge shopping," that claim would

also fail. Graf cites no legal authority in support of that

theory. Courts that have considered the argument of judge

shopping by a prosecutor have concluded that any such error is

not structural and is subject to a showing of prejudice. See

United States v. Pearson,

(10th Cir.

2000); United States v. E r w i n ,

(6th Cir. 1998).

3The harmless error analysis applicable to habeas corpus has changed since Haller was decided. S e e , e . g . , Calderon v. C o l e m a n ,

(1998); California v. R o v ,

(1997); O'Neal v. M c A n i n c h ,

(1995); Brecht v. A b r a h a m s o n ,

(1993) .

14 _____ No legal or factual basis exists in the record to conclude

that the prosecutor's call to the Chief Justice, which lead to

the recusal of the trial judge, is grounds to grant a writ of

habeas corpus. Therefore, that claim is denied pursuant to

§ 2 2 5 4 (b) (2) .

C. Decisions by the Trial Judge after Recusal

Graf invokes his federal due process right to a neutral and

detached trial judge and asserts that Judge O'Neill's rulings

after recusal constitute structural error necessitating reversal

without a consideration of prejudice. He cites Ward v.

M o n r o evi l l e ,

(1972) (holding that mayor serving as

judge was presumed to be biased due to revenue produced for town

by fines, fees, and costs); Chapman v. California.

(1967) (establishing strict harmless error standard for federal

constitutional error); and Turney v. O h i o ,

(1927)

(holding that judge's personal pecuniary interest in imposing

fines supported presumption of b i a s ) .

To maintain his claim of structural error, however, Graf

must show that Judge O'Neill was either actually biased against

him when he ruled on the pending motions after recusal, or that

he had some basis for rendering a biased judgment that would

support a presumption of bias. See Vasquez v. H i l l e r v ,

(1986); T u m e v ,

. The mere appearance of

partiality, without circumstances showing "a possible temptation

. . . to forget the burden of proof," is not enough. W a r d ,

; see also Cartalino v. W a s h i n g t o n ,

(7th

Cir. 1997).

The record shows no personal, financial, or other improper

interest that Judge O'Neill had in Graf's case, and Graf does not

argue that such interests existed. Instead, Graf relies on the

fact that Judge O'Neill recused himself and was disqualified from

making decisions in the case when he decided the pending motion,

apparently assuming that the fact of recusal establishes bias.

The record shows, however, that Judge O'Neill recused himself

because of a possible appearance of a lack of impartiality due to

a personal conflict perceived by the prosecutor.

Graf provides no factual support for presuming that Judge

O'Neill was biased against him.4 Even taking the facts in the

light most favorable to Graf, no trialworthy issue remains as to

whether Judge O'Neill was biased when he ruled on the pending

motion after recusal. Therefore, Graf's claim that Judge

O'Neill's decision on his pending motion constituted structural

4In addition, after discussing the recusal issue with counsel and indicating that he would likely recuse himself. Judge O'Neill asked counsel if they objected to having him decide the pending motions and they told him that they did not object.

16 error is denied on the merits pursuant to § 2254(b) (2)

II. Character Evidence

Graf contends that his due process rights were violated by

the trial court's decision to exclude evidence of his good

character. The court previously ruled that Graf procedurally

defaulted a due process claim based on the exclusion of character

evidence. See Order, Nov. 1, 2000, at 6. The court also ruled

that Graf had exhausted his Sixth Amendment claim that the trial

court violated the Compulsory Process Clause by excluding the

character evidence. Graf, however, does not pursue the Sixth

Amendment claim either in support of his own motion for summary

judgment or in opposition to the respondent's motion.5

The New Hampshire Supreme Court decided the character

evidence issue under state law, holding that the New Hampshire

Constitution is at least as protective as the federal

constitution of the asserted Sixth Amendment right. See Graf,

. Therefore, this court's review is de novo. See

F o r tini, 257 F.3d at 47.

"Under the Sixth Amendment Compulsory Process Clause,

5Although Graf may have intended to abandon his Sixth Amendment claim, the court will address the claim as an unopposed motion for summary judgment by the respondent.

17 criminal defendants generally have the right to present

'competent, reliable . . . exculpatory evidence.'" D i Benedetto,

272 F.3d at 7-8 (quoting Crane v. K e n t u c k y ,

(1986)). The right to present evidence is not unlimited,

however. See Chambers v. M i s s i s s i p p i ,

(1973) .

"The accused does not have an unfettered right to offer testimony

that is incompetent, privileged, or otherwise inadmissible under

the standard rules of evidence." Taylor v. Illinois,

(1988). States have broad latitude to adopt rules of

evidence to govern criminal prosecutions. See i d .

Graf "sought to introduce testimony, through opinions and

specific instances of conduct as testified to by other witnesses,

to show that: (1) he was not the type of person who would engage

in aggravated felonious sexual assault; and (2) he was not the

type of person who would take advantage of children." G r a f ,

. The trial court granted the state's motion in

limine to preclude the evidence, under New Hampshire Rule of

Evidence 4 0 4 ( a ) (1), and the New Hampshire Supreme Court affirmed.

New Hampshire Rule 4 0 4 ( a ) (1) provides: "Evidence of a

person's character or a trait of character is not admissible for

the purpose of proving that the person acted in conformity

therewith on a particular occasion, except: (1) Character of

Accused - - Evidence of a pertinent trait of character offered by

18 an accused . . . ."6 As the trial court discussed, general

evidence of Graf's good character and of the absence of

pedophilia tendencies does not tend to disprove the charges

against him because sexual assault on a child is not performed in

public nor is it likely to be known by others. As the supreme

court concluded, the trial court's ruling that the evidence did

not relate to a pertinent trait of character was in conformity

with the rule.7

The record does not show that the trial court's ruling

prevented Graf from presenting admissible and exculpatory

evidence in violation of the Compulsory Process Clause.8 The

respondent is entitled to summary judgment on Graf's Sixth

Amendment claim pertaining to the exclusion of character

evidence.

6Graf makes no argument that Rule 404(a) (1), which is substantially similar to Federal Rule of Evidence 4 0 4 ( a ) (1), is either outmoded, arbitrary, or not a legitimate evidentiary limitation. See United States v. Scheffer,

(1998) .

7The supreme court decided the application of Rule 404(a) (1) in the context of Graf's evidentiary argument on appeal.

8Further, even if a constitutional violation occurred, Graf has not shown that any error had a substantial and injurious effect on the jury's verdict in his case. See Brecht v. A b r a h a m s o n ,

(1993)

19 III. Delay in Deciding the Appeal

Graf contends that the more than three years that elapsed

between his sentencing and the decision on his appeal constitutes

a due process violation. Graf's state habeas petition was

decided after the New Hampshire Supreme Court issued its decision

affirming Graf's conviction. The state habeas court ruled that

the issue was, therefore, moot. Since the issue was not

adjudicated on the merits, de novo review applies once again.

The Supreme Court has not clearly recognized a due process

right to a speedy appellate process. S e e , e . g . , Codv v.

H e nderso n ,

(2d Cir. 1991); Dias v. M a l o n e y ,

(D. Mass. 2001). Lower federal courts that

have inferred a due process right to a timely resolution of the

appellate process have required a showing of prejudice. See,

e . g . . United States v. Luciano-Mosauera,

(1st

Cir. 1995); Harris v. C h a m p i o n ,

, 1559 (10th Cir.

1994); Latimore v. Spe n c e r ,

(D. Mass. 1998).

When a petitioner's conviction has been affirmed, even after a

lengthy delay, he cannot show prejudice unless the delay affected

the appeal process. See Luciano-Mosquera,

; C o d v ,

. Graf has not provided any evidence that his

appeal was tainted by the delay in the appellate process.

20 IV. Police Misconduct

Graf contends that the police chief of the town where the

incidents took place directed the development of the case against

him and that the chief was biased against him. Graf argues that

the chief interfered with his defense by instructing witnesses

not to talk to defense investigators. The issue of police

misconduct apparently was first raised in a pretrial motion to

dismiss, which was denied due to a lack of evidence of

interference with his preparation for trial. Graf did not pursue

the issue on appeal.

Graf raised the police misconduct issue again in his state

habeas proceeding, claiming newly discovered evidence concerning

the police chief's alleged statement about Graf to a third party.

The state habeas court ruled as follows:

Finally, the petitioner has raised a newly discovered claim concerning a statement made by the former chief of police in the town where the crimes occurred. However, the State argues that the former chief was not involved in the petitioner's case, another officer investigated and testified at trial, and that there was no plot afoot against the petitioner. The court finds that the petitioner has not met its [sic] burden of proving, by a preponderance of the evidence, that reliable evidence of this allegation exists.

Graf v. Warden, 99-E-377, at *4 (N.H. Sup. C t . Dec. 10, 1999),

Resp. Ex. J.

Without addressing the state court's factual finding, Graf

21 continues to argue that his trial was unfair due to the actions

of the allegedly biased police chief. In support of his theory,

Graf offers a copy of a note from one "Gary Crabtree" to Graf's

counsel. Crabtree states that he believes the charges and

evidence against Graf were manufactured by the chief because he

heard the chief say in reference to Graf, "I'm going to get that

son of a bitch." Pet. Ex. N. Graf submitted the same evidence

to the state habeas court, which ruled that the evidence was

insufficient to demonstrate police misconduct.

" [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." § 2254(e) (1) . Since Graf has not carried

his burden of rebutting the presumption in favor of the state

court's finding that he failed to provide reliable evidence of

police misconduct, the respondent is entitled to summary judgment

on the police misconduct claim.

V . Decision to Prohibit Use of Privileged Matters During _____ Cross-Examination of State's Expert Witness

Graf contends that the trial court's decision not to allow

his counsel to introduce privileged information during his cross-

examination of the state's expert witness violated Graf's federal

22 due process rights.9 Graf presented the federal due process

issue to the New Hampshire Supreme Court, but the court decided

the issue under the state constitution, without reference to

federal constitutional law. See Graf,

.

Therefore, the de novo standard of review applies. See Fortini,

257 F .3d at 47.

"The right of an accused in a criminal trial to due process

is, in essence, the right to a fair opportunity to defend against

the State's accusations. The rights to confront and cross-

examine witnesses and to call witnesses in one's own behalf have

long been recognized as essential to due process." Chambers,

. The right, however, is not absolute, and states

retain "broad latitude" in establishing evidentiary rules. See

S cheffer .

. Therefore, a state evidentiary rule

does not violate due process "unless it is 'arbitrary or

disproportionate' and 'infringe[s] upon a weighty interest of the

accused.'" For t i n i , 257 F.3d at 46 (quoting S c h e f f e r ,

).

During the criminal trial, the state called an expert

witness to testify about delayed disclosure by child victims of

9Although Graf raised both due process and Sixth Amendment confrontation clause rights on appeal to the New Hampshire Supreme Court, he has pursued only the due process issue for habeas relief here.

23 sexual abuse. See G r a f ,

. The expert's testimony

was presented through a series of hypothetical questions. See

Defense counsel was permitted to ask hypothetical questions,

during cross-examination, which incorporated some facts from

privileged matters that were not in evidence. See i d . In

particular, defense counsel asked questions that included the

following information:10

[1] hearsay statements of the victim to his therapist that he had engaged in what he believed to be inappropriate sexual contact with his younger brother and the resulting punishments he had received from his parents; and [2] that the victim did not disclose the allegations in question to his therapist at the time the acts were alleged to have occurred, notwithstanding the fact that he was disclosing the perceived inappropriate contact with his brother.

Gra f .

. The trial court did not permit defense

counsel to introduce substantive evidence to support the

hypothetical q u e s t i o n s .

On appeal, the New Hampshire Supreme Court concluded that

the privileged information would not have helped Graf's case.

The court noted that in response to defense counsel's

hypothetical questions which included the privileged information.

10The court did not consider the third subject of excluded evidence, the victim's mother's statements, because Graf did not contest the trial court's ruling as to that evidence, and therefore, that issue is procedurally defaulted. See Graf,

.

24 the expert witness testified "that his first impression was that

the victim probably would not disclose the abuse." G r a f ,

. Therefore, the court concluded, "even if the trial

judge had permitted the defendant to admit substantive evidence

on the issues in question, the expert's opinion was that such

information would lead him to believe that the victim would be

less likely, as opposed to more likely to disclose the abuse--a

fact that would contradict the theory of defense at trial."

In this action, Graf argues that the privileged matters that

were excluded would show that the boy had other sources of

advanced sexual knowledge, that he had a trusting relationship

with his therapist to whom he had made other similar disclosures,

that he was in counseling in part because of lying, and that he

did not mention the charged assaults until almost a year after

they occurred. Graf also submits the opinion of a psychologist.

Dr. Eric G. Mart, to bolster his argument. The respondent

asserts that Graf did not raise the issues of advanced sexual

knowledge or lying in the state court proceedings, that the state

supreme court properly determined that exclusion of the

privileged matters was not prejudicial, and that the opinion of

Dr. Mart should not be considered.

This court may expand the record to include "additional

materials relevant to the determination of the merits of the

25 petition."11 Rule 1 , Rules Governing § 2254 Cases. Graf

previously filed a motion to expand the record, seeking in part

to include an opinion by an expert witness that attacked the

opinions of the state's expert witness. See Order, Feb. 21,

2001. The court declined to expand the record to include the

opinion because it was not relevant to the issue of the

privileged information.

With respect to the new opinion by Dr. Mart, Graf simply

submitted the opinion with his motion for summary judgment. He

did not move to expand the record, as is required by Rule 7.

Therefore, Dr. Mart's opinion is not part of the record before

the court and will not be considered.

In addition, even if the opinion had been offered in an

appropriate motion, the motion would be denied, because Dr.

Mart's opinion, like the previously offered opinion, primarily

attacks the opinion of the state's expert witness. To the extent

that Dr. Mart's opinion addresses privileged matters at all, he

discusses the boy's cognitive abilities, not the privileged

matters that were at issue at trial.

Graf claims that the exclusion of the evidence left the jury

11As the issue was not raised, the court does not consider the relationship between Rule 7 and § 2254(e) (2) . S e e , e . g . , Bovko v. P a r k e .

(7th Cir. 2001); Hollowav v. Horn,

, 510 n.49 (E.D. Pa. 2001) .

26 with an inaccurate picture of the boy and of why he might have

delayed disclosing the abuse. The issue before the court,

however, is whether a due process violation occurred when the

trial court excluded from cross-examination the information that

the boy had disclosed to his therapist inappropriate sexual

contact with his brother and did not disclose the charged abuse

for almost a year. The state's expert gave his opinion that the

referenced privileged information would not change his view and

that the information actually supported his opinion that the boy

would have delayed his disclosure of the abuse. The supreme

court concluded that because the excluded information would not

have affected the expert's opinion, no prejudice occurred. Graf

has not shown that he had a weighty interest in admitting the

evidence or that the trial court's decision was arbitrary or

disproportionate in relation to such an interest.

Therefore, the respondent is entitled to summary judgment on

the issue of whether the privileged matters were excluded in

violation of due process.

27 Conclusion

For the foregoing reasons, the petitioner's motion for

summary judgment (document no. 55) is denied. The respondent's

motion for summary judgment (document no. 62) is granted.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. United States District Judge

April 12, 2002

cc: Michael J. Sheehan, Esquire Neals-Erik W. Delker, Esquire

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