Hammell v . Warden CV-03-422-SM 08/31/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Brian R. Hammell, Petitioner

v. Civil N o . 03-422-SM Opinion N o .

Bruce W . Cattell, Warden, Respondent

O R D E R

Brian R. Hammell, a state prisoner serving concurrent

sentences resulting from convictions on nine counts of being a

felon in possession of a weapon, petitions for a writ of habeas

corpus.

. After preliminary review by the

Magistrate Judge, Hammell’s petition consists of seven claims.1

Before the court are cross motions for summary judgment. For the

reasons given, respondent’s motion for summary judgment is

granted and petitioner’s motion for summary judgment is denied.

The historical and procedural background to Hammell’s

petition is set out in detail in the Magistrate Judge’s report

1 Two claims were dismissed for lack of subject-matter jurisdiction because they alleged only violations of state law. and recommendation (document n o . 4 ) . In brief, Hammell was

arrested by police officers who responded to a 911 call from an

apartment he occupied with his wife, Sheila, and Dan Mathieu.

When the officers arrived, they found Hammell and his wife, both

bleeding. Mathieu was also present, as were thirty-six assorted

firearms and four knives. Hammell was initially arrested for

simple assault, after he pushed one of the police officers.

Subsequently, he was charged with forty counts of being a felon

in possession of a weapon. Hammell was tried in the New

Hampshire Superior Court and convicted on the assault charge and

twelve of the forty felon-in-possession counts.2 Three of the

felon-in-possession counts were reversed, on direct appeal, by

the New Hampshire Supreme Court.3 Hammell, 147 N.H. at 320.

Here, Hammell challenges those remaining convictions on seven

separate grounds, discussed in more detail below.

2 Specifically, he was found guilty of “four counts of possessing a knife; five counts of possessing a twenty-two caliber weapon; and three counts of possessing a forty-five caliber weapon.” State v . Hammell,

(2001). 3 The three reversed convictions were related to the .45- caliber weapons.

2 Passage of the Anti-Terrorism and Effective Death Penalty

Act of 1996 (“ADEPA”),

(d), has significantly

limited the power of the federal courts to grant habeas corpus

relief to state prisoners. A federal court may disturb a state

conviction only when: (1) the state court adjudication “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,”

(d)(2); or (2) the state court’s

resolution of the issues before it “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,”

(d)(1); see also

Williams v . Taylor,

6 2 , 399 (2000). Regarding the

distinction between decisions “contrary to” clearly established

federal law and those involving an “unreasonable application” of

federal law, the United States Supreme Court has stated:

Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the

3 Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.

Williams, 529 U.S. at 412-13.

Ground One

Petitioner claims that the New Hampshire Supreme Court

violated his Fourteenth Amendment right to due process when it

affirmed his conviction on the four knife-related counts by

relying, in the first instance, on evidence not presented to the

jury and, ultimately, by relying upon insufficient evidence.

Respondent concedes that the Supreme Court erroneously relied

upon evidence not presented to the jury in affirming petitioner’s

convictions on the knife-related counts.4 However, respondent

argues that the evidence that was presented to the jury was

sufficient to support both the jury verdict and, consequently,

the Supreme Court’s decision to affirm the knife-related

convictions. Petitioner counters that disputed issues of

4 In his direct appeal, Hammell challenged the denial of his pre-trial motion to suppress evidence as well as his conviction. In its opinion, the Supreme Court presented a single statement of facts, drawing from the records of both the suppression hearing and the trial. In affirming Hammell’s conviction on the four knife-related charges, the Court mentioned one piece of testimony offered at the suppression hearing but not at trial.

4 material fact preclude summary judgment in respondent’s favor.

Petitioner makes the same argument regarding each of the seven

grounds in his petition. Rather than identifying material

factual disputes, however, he points to various undisputed facts

and argues that, as a logical matter, they do not support a

finding of guilt. Thus, plaintiff has raised no factual dispute

that would preclude summary judgment.

Petitioner’s constitutional right not to be convicted on

insufficient evidence is spelled out in Jackson v . Virginia,

(1979), in which the United States Supreme Court held

that “the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.”

at 319 (citing Johnson

v . Louisiana,

(1972)).

In his direct appeal to the New Hampshire Supreme Court,

Hammell argued that the evidence was insufficient to support any

of his twelve convictions for being a felon in possession of a

weapon. Hammell,

. Relying upon a state

5 sufficiency-of-the-evidence rule that is the functional

equivalent of the rule established in Jackson,5 the New Hampshire

Supreme Court rejected Hammell’s claim that his conviction on the

four knife-related counts was not supported by sufficient

evidence.

. Explaining its holding, the Court stated:

Reviewing the trial record, we hold that a rational trier of fact, evaluating all of the evidence and its reasonable inferences in the light most favorable to the State, could conclude beyond a reasonable doubt that the defendant was in control of the four knives discovered in the bedroom of the apartment. See Graham, 142 N.H. at 360. Both the defendant and Mrs. Hammell were residing in the apartment at the time of the incident. When [Officer] Dexter arrived at the apartment he discovered both the defendant and Mrs. Hammell bleeding. Mrs. Hammell identified knives she claimed were brandished by the defendant and Smith in the earlier altercation. One of the four knives seized by Dexter had blood on the blade and all four knives were lying in close proximity to one another. In addition, at trial the defendant’s cellmate, Keith Olsen, testified that the defendant admitted to being in a fight with [Jeffrey] Smith in which both men brandished knives.

Hammell,

.

5 The New Hampshire Supreme Court relied upon the following rule: “To prevail on a challenge to the sufficiency of the evidence, the defendant must demonstrate that no rational trier of fact, evaluating all of the evidence and its reasonable inferences in the light most favorable to the State, could conclude beyond a reasonable doubt that he had committed the charged crime.” Hammell,

(citing State v . Graham,

5 7 , 360 (1997)).

6 In petitioner’s view, he is entitled to habeas relief

because the New Hampshire Supreme Court, in affirming his

conviction on the knife-related charges, relied upon the fact

that “Mrs. Hammell identified knives she claimed were brandished

by the defendant and Smith in the earlier altercation.” The

state court’s inclusion of that fact in its opinion, while

plainly error, does not necessarily warrant habeas relief.

Petitioner does not have a constitutional right to a perfect

appellate decision any more than he has a constitutional right to

a perfect trial. See Mastracchio v . Vose,

9 0 , 605 (1st

Cir. 2001) (explaining that habeas relief was not available to

criminal defendant who “did not receive a perfect trial [but]

received a fair one”).

The constitution guarantees petitioner the right not to be

deprived of liberty on the basis of insufficient evidence, that

i s , evidence from which no rational trier of fact could have

found that he committed the essential elements of the crimes of

which he was convicted. Thus, if a rational trier of fact could

find the essential elements of the charged felon-in-possession

offenses from the evidence before the jury, then the Supreme

7 Court did not make a decision that was “contrary t o , or [that]

involved an unreasonable application o f , clearly established

Federal law, as determined by the Supreme Court of the United

States.”

(d)(1).

Even ignoring the evidence the state court incorrectly

considered (i.e., that Mrs. Hammell identified the knives as

having been brandished by her husband and Smith), a rational

trier of fact still could have found beyond a reasonable doubt

that Hammell committed the essential elements of being a felon in

possession with respect to the four knives in the apartment.

Under New Hampshire law:

A person is guilty of a class B felony if h e :

(a) Owns or has in his possession or under his control, a pistol, revolver, or other firearm, or slungshot[sic], metallic knuckles, billies, stiletto, switchblade knife, sword cane, pistol cane, blackjack, dagger, dirk-knife, or other deadly weapon as defined in RSA 625:11, V ; and

(b) Has been convicted in either a state or federal court in this or any other state, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States o f : (1) A felony against the person or property of another; or (2) A felony under RSA 318-B; or

8 (3) A felony violation of the laws of any other state, the District of Columbia, the United States, the Commonwealth of Puerto Rico or any territory or possession of the United States relating to controlled drugs as defined in RSA 318-B.

N . H . R E V . STAT. A N N . (“RSA”) § 159:3, I (emphasis added). For

purposes of the felon-in-possession statute, the term “[c]ontrol

is defined as the ‘authority to direct or regulate’; when used as

a verb, the word means ‘to regulate, . . . to exercise authority

over, . . . [to] direct [or] command, . . . to curb [or]

restrain.’” State v . Pike, 128 N . H . 4 4 7 , 449 (1986) (quoting

WEBSTER’S NEW WORLD DICTIONARY 165 (MacMillan Students ed. 1960)). In

other words, with regard to control of a weapon, “[t]he question

[raised is whether [a person] is] the one who ultimately, among

the persons who may have occupied that structure in which the

firearms were found, could determine who could . . . use that

particular rifle or rifles[.]” Id. at 450 (quotation omitted).

Here, petitioner concedes that he was a convicted felon at

the time of his arrest, and respondent appears to concede that

petitioner did not own any of the four knives at issue. Thus,

the only question is whether the state court unreasonably applied

9 the sufficiency-of-the-evidence standard when it affirmed the

jury’s verdicts of guilt regarding the four knives. While the

Supreme Court erred when it considered evidence not before the

jury, its decision – affirming the conviction – was not

unreasonable, because a reasonable trier of fact could find, from

the evidence properly before the jury, that petitioner controlled

the four knives by virtue of his power to determine who could use

them.

The jury was presented with evidence that: (1) the four

knives were found in proximity to one another in a bedroom

petitioner shared with his wife; (2) shortly before the police

arrived, petitioner had been involved in a fight in which he

wielded a knife; (3) petitioner’s wife had a gash on her hand

when the police arrived; and (4) one of the knives in the bedroom

had blood on i t . It is not an unreasonable application of the

sufficiency-of-the-evidence standard to conclude, on that record,

that a rational trier of fact could find that petitioner had the

power to determine who used the four knives he was charged with

possessing. In other words, it would not be irrational for a

trier of fact to base a verdict on the following reasoning: (1)

10 Hammell was involved in a knife fight during which he actually

possessed a knife; (2) he selected the knife he used from among

the four stored in the bedroom he shared with his wife (and

returned the knife to that location after the fight); (3) because

the four knives were stored together, Hammell’s possession and

use of one of them demonstrated his control over all of them.

Because the state court’s decision to affirm the four knife-

based convictions was not contradictory t o , and did not involve

an unreasonable application o f , the Supreme Court’s sufficiency-

of-the-evidence decisions, petitioner is not entitled to habeas

corpus relief based upon the first ground raised in his petition.

Ground Two

Petitioner claims that he was subjected to double jeopardy

and/or a trial unfairly tainted by prosecutorial overreaching

because he was tried on forty separate counts of being a felon in

possession of a weapon. Respondent argues that the State

violated none of petitioner’s constitutional rights by charging

him with forty separate offenses.

11 The Sixth Amendment to the United States constitution

protects criminal defendants from being placed in jeopardy more

than once for the same offense. The New Hampshire Supreme Court

has ruled that the double jeopardy provision of the United States

constitution permits the State to charge multiple violations of

RSA 159:3 based upon the possession of more than one weapon.

State v . Stratton,

5 1 , 454-55 (1989). No United States

Supreme Court opinion holds it unconstitutional for a state to

enact a statute under which a felon could be convicted of a

separate offense for each weapon he or she is found to possess.6

The New Hampshire Supreme Court has not misapplied any governing

legal principle to the facts of petitioner’s case. To the

contrary, in Bell v . United States,

(1955), the

United States Supreme Court stated: “Congress could no doubt make

the simultaneous transportation of more than one woman in

violation of the Mann Act liable to cumulative punishment for

6 Petitioner notes, correctly, that the Seventh Circuit has held that in prosecutions under

(g)(1), the federal felon-in-possession statute, a defendant charged with possessing more than one weapon in a single transaction may only be charged with a single count. See United States v . Buchmeier,

(7th Cir. 2001). However, the Seventh Circuit’s construction of the federal felon-in-possession statute has no bearing on this case, which involves the constitutionality of a New Hampshire state statute.

12 each woman so transported. The question i s : did it do so?” Id.

at 82-83. The legal principle stated in Bell plainly permitted

the New Hampshire legislature to determine that the proper unit

of prosecution under its felon-in-possession statute is one

offense per weapon. Accordingly, petitioner is not entitled to

habeas corpus relief, based upon his multiple indictment, on

double jeopardy grounds.

Equally unavailing is petitioner’s claim that he was denied

due process of law when he was tried on forty separate counts.

The trial court’s decision to allow trial on all forty counts was

not contrary to any decision by the United States Supreme Court.

Moreover, based on the record, it is clear that petitioner was

not subjected to a trial that “violate[d] those ‘fundamental

conceptions of justice which lie at the base of our civil and

political institutions,’ and which define ‘the community’s sense

of fair play and decency.’” Dowling v . United States,

(1990) (quoting Mooney v . Holohan,

(1935); Rochin v . California,

(1952)). Thus,

the New Hampshire Supreme Court did not unreasonably apply

federal due process jurisprudence in affirming the trial court.

13 Accordingly, petitioner is not entitled to habeas corpus relief,

based upon his multiple indictment, on due process grounds.

Ground Three

Petitioner argues that his rights to due process and

protection from double jeopardy were violated because his four

convictions for being a felon in possession of a knife were not

supported by sufficient evidence. The essence of his claim is

that the jury convicted him on all four knife-related counts

without evidence linking him to any particular knife.

Petitioner’s double jeopardy argument fails for the reasons given

above. Even if knowledge and proximity are insufficient, as a

matter of law, to support an inference of possession, New

Hampshire’s felon-in-possession statute is violated when a felon

owns, possesses, or controls a weapon. In this case, the jury

was presented with sufficient evidence from which it could

conclude, beyond a reasonable doubt, that Hammell possessed one

of the four knives found in the bedroom, and controlled all four.

Accordingly, petitioner is not entitled to habeas corpus relief

based upon the claims made in ground three.

14 Ground Four

Petitioner argues that his rights to due process and

protection from double jeopardy were violated because his five

convictions for being a felon in possession of a firearm were not

supported by sufficient evidence. As with the four knife-related

convictions discussed above, petitioner contends that his

constitutional rights were violated because he was convicted on

five counts related to .22-caliber weapons without sufficient

evidence that he ever possessed any specific .22-caliber weapon.

His double jeopardy claim fails for the reasons already given.

Regarding the sufficiency-of-the-evidence claim, respondent

argues that under the standard set out in Jackson, a rational

trier of fact could find that Hammell had control over the five

.22-caliber weapons found in the apartment at the time of his

arrest.

In its decision affirming petitioner’s conviction on the

five counts related to the .22-caliber weapons, the New Hampshire

Supreme court recited the following facts:

At the time of his arrest, the [petitioner] had fifteen rounds of twenty-two caliber ammunition in his pocket. In addition, [petitioner’s cellmate] Olsen also

15 testified that the [petitioner] admitted that he had been shooting twenty-two caliber weapons with Mathieu on the day of his arrest.

Hammell,

. The jury also heard evidence that

petitioner had been living off and on for thirty days in the

apartment in which the .22-caliber weapons were found, and that

he had full access to the apartment. It would not be irrational

for a trier of fact to base a guilty verdict on the following

reasoning: (1) Hammell shot a .22-caliber gun earlier in the day

on which he was arrested; (2) he was arrested with .22-caliber

ammunition in his pockets; (3) the apartment where he was

arrested (in which he was then living, and to which he had full

access) contained five .22-caliber weapons; (4) because he had

.22-caliber ammunition in his pocket and full access to the .22-

caliber weapons in the apartment – at least one of which he had

already used – he had the ability to control those firearms by

determining their use and disposition. That a rational trier of

fact could draw a different conclusion from the same facts is not

material under the Jackson standard. Equally immaterial is the

jury’s decision to credit the testimony of one witness (Olsen)

over that of another (Mathieu). Because the jury was presented

with sufficient evidence from which to conclude, beyond a

16 reasonable doubt, that petitioner controlled the five .22-caliber

firearms found in the apartment, he is not entitled to habeas

corpus relief based upon the claims made in ground four.

Ground Seven

Petitioner argues that his rights to a fair trial and to be

tried only on indictments handed down by a grand jury were

violated by a jury instruction that improperly amended the

indictment against him. Specifically, he objects to the trial

court’s response to a question from the jury which, in

petitioner’s view, substantively altered the indictment against

him by adding an element to the offense with which he was

charged.7 Respondent argues that the trial court did not amend

7 In its charge to the jury, the trial court stated: “A person cannot be convicted of the crime [of being a felon in possession] i f , for example, he happens to walk into a house in which there are weapons. Nor is access alone or residence dispositive in determining if a person possesses or has control over a weapon. . . . Whether a person possesses or controls a weapon is determined by all of the circumstances of the case.” Tr. at 156. During its deliberations, the jury posed the following questions: (1) “Please explain the sentence on page 7 line 19 ‘Nor is access alone or residence dispositive when determining if a person possesses or has control over a weapon”; and (2) “Can a person be in control of a weapon if he/she lives where these weapons are stored in an unlocked condition without anyone else being present?”. The trial court responded, in part: “Whether a person is in

17 the indictment, but merely clarified the wording of its initial

instruction.

Under the Fifth Amendment’s grand jury clause, a criminal

defendant enjoys a constitutional right not to be tried on

charges unless they are contained in an indictment returned by a

grand jury. United States v . Miller, 471 U . S . 1 3 0 , 131 n.1

(1985) (quoting U . S . CONST. amend. V ) . That right is violated

when “the offense proved at trial [is] not fully contained in the

indictment, [because] trial evidence had ‘amended’ the indictment

by broadening the possible bases for conviction from that which

appeared in the indictment.”

at 138 (citing Stirone v .

United States, 361 U . S . 212 (1960)) (emphasis omitted).

The question in Stirone was “whether [the defendant] was

convicted of an offense not charged in the indictment.” Miller,

471 U . S . at 138-39 (quoting Stirone, 361 U . S . at 2 1 3 ) . The

control of a weapon must be determined by considering all of the circumstances of a particular case. . . . When I say that acces or residence is not dispositive, I mean that the mere fact that person has access to weapons or lives in a residence where weapons are present does not necessarily mean the person has control over the weapons although these are factors you should consider as among the circumstances determining control.”

18 Supreme Court held that Stirone had been so convicted, because

the indictment charged him with interfering unlawfully with

interstate commerce by engaging in extortion that obstructed

shipments of sand into Pennsylvania, while, at trial, the

prosecutor introduced evidence to prove both the sand shipment

allegations and allegations that Stirone unlawfully interfered

with interstate commerce by obstructing the export of steel from

Pennsylvania.

Here, by contrast, Hammell’s offenses of conviction were

fully contained in the indictment. In each of the indictments

for being a felon in possession, petitioner was charged with

having “ . . . in his possession or under his control a dangerous

weapon . . .” In its instructions to the jury, the trial court

did not give the jury another theory under which it could return

a guilty verdict, nor did it add an alternative element to the

offense of being a felon in possession that could be proven in

place of ownership, possession, or control. Rather, the court

merely indicated some of the circumstances that the jury could

consider in determining whether Hammell controlled any particular

weapon. Moreover, rather than instructing the jury that access

19 to weapons, or residence in a place where weapons were stored,

was enough to support a felon-in-possession conviction, the court

did just the opposite. The jury was instructed that access and

residence are factors that should be evaluated when determining

control, but that neither factor, on its own, was sufficient to

support a determination of control. In other words, the trial

court correctly instructed the jury that access or residence

could be considered in determining whether petitioner exercised

control over the weapons at issue, but that neither access nor

residence was sufficient, on its own, to establish control or

possession.8 Thus, the trial court did not effectively amend the

indictment in violation of petitioner’s constitutional rights

and, as a consequence, he is not entitled to habeas corpus relief

based upon his seventh ground.

Grounds Eight and Nine

Petitioner claims that his right to due process of law was

violated by the State’s knowing use of false evidence against him

(ground eight) and that his Sixth Amendment right to present

8 Contrary to petitioner’s belief, identifying access and residence as circumstantial evidence of control is not the same as ruling that access or residence are elements of the offense of being a felon in possession.

20 exculpatory evidence was violated by the State’s failure to

disclose and/or its suppression of various pieces of evidence

(ground nine). Respondent argues that those two grounds may not

be raised on federal habeas corpus review because they were

procedurally waived in the state court.

Under the doctrine of independent and adequate state

grounds, federal habeas corpus review is barred “when a state

court declined to address a prisoner’s federal claims because the

prisoner had failed to meet a state procedural requirement.”

Coleman v . Thompson,

2 2 , 729-30 (1991). Here, the

state court has ruled that petitioner waived the issues raised in

grounds eight and nine under the rule stated in Avery v .

Cunningham,

3 8 , 143 (1988). Thus, this court is barred

from considering those issues.

Petitioner contends that review is not barred because the

Magistrate Judge determined that the claims he raises in grounds

eight and nine met the exhaustion requirement for federal habeas

corpus review. Those claims have been exhausted for federal

habeas purposes. See Coleman, 501 U.S. at 732 (“A habeas

21 petitioner who has defaulted his federal claims in state court

[thus barring federal review] meets the technical requirements

for exhaustion; there are no state remedies any longer

‘available’ to him.”) (citations omitted). But, as in Coleman,

the state court decision that establishes exhaustion also

establishes that petitioner’s claims are barred under the

independent and adequate state grounds doctrine.9 Thus, review

on the merits is not available in this forum.

Conclusion

For the reasons given above, petitioner’s incarceration is

not the result of “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.”

(d)(1). Accordingly, respondent’s motion for

summary judgment (document n o . 16) is granted, petitioner’s

motion for summary judgment (document n o . 12) is denied, and his

petition for a writ of habeas corpus is dismissed. The clerk of

9 The independent and adequate state grounds doctrine admits of two exceptions, for petitioners who can show cause and prejudice for their defaults, and for those who can establish actual innocence, see Simpson v . Matesanz,

0 0 , 209 (1st Cir. 1999), but neither exception applies to this case.

22 the court shall enter judgment in accordance with this order and

close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

August 3 1 , 2004

cc: Brian R. Hammell, pro se Ann M . Rice, Esq.

23