Merritt v . Warden, NHSP CV-03-311-JD 03/11/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kevin Merritt

v. Civil N o . 03-311-JD Opinion N o .

Warden, New Hampshire State Prison

O R D E R

Kevin Merritt, proceeding pro s e , seeks a writ of habeas

corpus, pursuant to

, based on several claims

all arising from the fact that Merritt’s alleged accomplice

was not called to testify at his trial. The Warden moves for

summary judgment, contending that one claim is procedurally

defaulted and that the remainder of his claims are without

merit. Merritt has not responded to the motion for summary

judgment.

Background

Merritt was convicted on September 2 4 , 1996, of four

counts of acting in concert with another in the fraudulent use

of credit cards. He was sentenced to a term of five to ten

years imprisonment. In July of 1999, the New Hampshire

Supreme Court reversed his conviction on one count, due to

insufficient evidence, but affirmed his other convictions. Attorney Barbara Bradshaw was appointed to represent

Merritt, in response to his motion for appointment of new

counsel, which was filed shortly before his trial was

scheduled to begin. Bradshaw met with Merritt and discussed

trial strategy, specifically a defense focused on whether

Merritt had knowledge of the use of the credit cards. When Bradshaw met with Merritt again about a week later, over the

weekend just before trial, Merritt presented her with a note

purportedly signed by his alleged accomplice, Kelly Higgins

Laster, stating that Merritt did not give her any credit cards. 1

Bradshaw knew that Laster was incarcerated in Maine and

believed that Laster was asserting her innocence on the

charges against her arising from the same events. In response

to Bradshaw’s questions, Merritt explained his possession of

the note only by saying that “I have my ways.” Bradshaw

explained that the note was inadmissible hearsay and could not

be introduced at trial. Bradshaw offered that Laster could be

called to testify, although that would delay the trial.

Because Laster would likely raise self-incrimination issues,

1 At the time of trial, Merritt’s alleged accomplice’s name was Kelly C . Higgins. To avoid confusion, she will be referred to as Laster in this order.

2 Bradshaw explained, further court hearings would be necessary

to obtain her testimony. Merritt was upset that Bradshaw

would not use the note at trial and offered to get the same

information in affidavit form.

On the day of jury selection, Merritt produced an

affidavit form of Laster’s note that lacked a jurat or the necessary formality of an affidavit. Attorney Bradshaw was

skeptical about the “affidavit” and discussed a continuance

with Merritt so that she could investigate Laster’s statements

and attempt to obtain her testimony at trial, if appropriate.

Merritt adamantly refused to allow any continuance of the

trial. At his direction, Attorney Bradshaw argued against the

state’s last-minute request for a continuance.

Before the trial began, Merritt asked to address the

court. Speaking on his own behalf, he explained that he had presented a document to his counsel and wanted to show it to

the court. Judge Murphy told Merritt to tell him what he had

presented to his counsel and warned Merritt that he did not

want to get involved in any attorney-client privilege.

Merritt told the judge that he had the statement from Laster

and that Bradshaw told him the statement was inadmissible and

it would take sixty days to get Laster to court to testify.

After establishing that Laster was in jail in York County,

3 Maine, Merritt asked the court if the statement was admissible

in his trial. Judge Murphy told him that the statement was

hearsay and inadmissible and that it would take time to get

Laster to court to testify. Judge Murphy also told Merritt

that he did not expect him to understand the law of evidence.

Merritt chose to go forward with the trial and was convicted. After Merritt filed a motion for a new trial, new counsel

from the Office of the Public Defender was appointed to

represent him. Merritt sought a new trial on grounds of newly

discovered evidence and ineffective assistance of trial

counsel. The newly discovered evidence offered by Merritt was

expected testimony from Laster to the effect that Merritt did

not furnish the credit cards used for the purchases that were

the bases of the charges against him and his convictions. He

also asserted a claim of ineffective assistance of trial counsel, due to Attorney Bradshaw’s failure to call Laster as

a witness at trial. The state court denied the motion for a

new trial, and the New Hampshire Supreme Court declined to

accept the appeal.

Merritt then filed a petition for habeas corpus in state

court, proceeding pro s e . In support of his habeas petition,

Merritt alleged ineffective assistance of his trial counsel,

Barbara Bradshaw; ineffective assistance of appellate counsel,

4 Gary Apfel, and ineffective assistance of counsel appointed to

represent him in the proceeding seeking a new trial, Richard

Gaudreau. The trial court denied the petition and Merritt’s

motion for reconsideration, and the New Hampshire Supreme

Court declined to accept the appeal.

Discussion

In support of his application for a writ of habeas corpus

in this court, Merritt raises the following claims: (1)

ineffective assistance of trial counsel due to counsel’s

failure to compel witnesses and to present exculpatory

evidence; ( 2 ) ineffective assistance of appellate counsel,

arising from an actual conflict of interest, and of counsel on

the motion for a new trial, due to counsel’s failure to raise

the ineffective assistance of his trial counsel on appeal; ( 3 )

judicial intrusion into the attorney-client relationship in

violation of Merritt’s right to due process, right to compel

witnesses, and right to the effective assistance of counsel;

( 4 ) actual innocence; ( 5 ) denial of the Sixth Amendment right

to compel witnesses, and ( 6 ) denial of due process due to the

court’s failure to consider exonerating evidence. The Warden

moves for summary judgment, asserting that Merritt’s claim of

ineffective assistance of trial counsel was procedurally

5 defaulted and that his other claims fail on the merits.

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.

5 6 ( c ) ; see also Fed. R. Civ. P. 81(a)(2); Rule 11 of the

Rules Governing § 2254 Cases. An unopposed motion for summary

judgment can only be granted if the moving party is entitled

to judgment on the merits of the motion, viewed in light of

Rule 5 6 . See Carmona v . Toledo,

2 4 , 134 n.9 (1st

Cir. 2 0 0 0 ) .

A. Procedural Default

The Warden argues that Merritt procedurally defaulted his

claim of ineffective assistance of trial counsel by not

raising the claim in his direct criminal appeal. The Warden is wrong. 2

2 Assistant Attorney General Nicholas Cort represents the Warden. Cort’s motion and memorandum are unhelpful in resolving the issues presented in this case. The court expects attorneys appearing before it to be thoroughly familiar with the law relating to the subject matter in controversy and to present well considered motions and

6 For purposes of a federal habeas corpus proceeding, “a

habeas petitioner who has failed to meet the State’s

procedural requirements for presenting his federal claims has

deprived the state courts of an opportunity to address those

claims in the first instance.” Coleman v . Thompson,

2 2 , 732 (1991); accord Edwards v . Carpenter,

4 6 , 451 (2000). Therefore, “federal habeas review is precluded,

as a general proposition, when a state court has reached its

decision on the basis of an adequate and independent state-law

ground.” Burks v . Dubois,

1 2 , 716 (1st Cir. 1 9 9 5 ) .

A petitioner’s procedural default in state court is an

independent and adequate state ground for the state court’s

decision as long as the state regularly and consistently

enforces that procedural rule. Gunter v . Maloney,

4 , 79 (1st Cir. 2 0 0 2 ) . Merritt first raised the claim of ineffective assistance

of trial counsel in his motion for a new trial. The state

court ruled that he had not demonstrated that Attorney

Bradshaw’s representation was ineffective. Merritt raised the

same claim in his state habeas proceeding. There, the court

ruled, in alternative holdings, that Merritt procedurally

memoranda. Anything short of this does little to advance the resolution of a case.

7 defaulted the ineffective assistance of trial counsel claim

and that the claim failed because it had been previously

decided on the merits in the context of his motion for a new

trial.

New Hampshire has not regularly and consistently enforced

a procedural rule that an ineffective assistance of counsel claim is waived unless it is raised in a criminal defendant’s

direct appeal. S e e , e.g., Humphrey v . Cunningham,

2 7 , 732-33 (1990); Avery v . Cunningham,

3 8 , 144-45

(1988); State v . Riendeau,

at * 4 , n.4 (N.H.

Sup. C t . Nov. 1 4 , 2 0 0 1 ) . In fact, the state court’s decisions

in Merritt’s case demonstrate an inconsistent application of

such a rule. Therefore, Merritt’s claim of ineffective

assistance of trial counsel is not procedurally defaulted.

The Warden’s motion for summary judgment based on procedural default is denied.

B. Review Pursuant to

In reviewing claims on the merits, a federal habeas

court must decide whether the state court decision “was

contrary t o , or involved an unreasonable application o f ,

clearly established Federal law,” or “resulted in a decision

based on an unreasonable determination of the facts. . . .” §

8 2254(d); see also Price v . Vincent, 123 S . C t . 1848, 1852

(2003). A state court’s decision is “contrary to” clearly

established Supreme Court precedent if it “‘applies a rule

that contradicts the governing law set forth in our cases’ or

if it ‘confronts a set of facts that are materially

indistinguishable from a decision of this Court and nevertheless arrives at a result different from our

precedent.’” Mitchell v . Esparza, 124 S . C t . 7 , 10 (2003)

(quoting Williams v . Taylor,

6 2 , 405-406

(2000))(citing Price v . Vincent, 123 S . C t . 1848, 1853 (2003);

Early v . Packer,

, 7-8 (2002)).

Adjudication on the merits does not mean that the state

court necessarily decided the claim under federal law, and a

state court’s decision is not “contrary to” federal law due to

a lack of citation to any federal precedent. Early,

. “[A] state court need not even be aware of [Supreme

Court] precedents, so long as neither the reasoning nor the

result of the state-court decision contradicts them.”

(internal quotation marks omitted). When a state court

applies federal law and its application is challenged under §

2254(d), “it must be shown to be not only erroneous, but

objectively unreasonable.” Yarborough v . Gentry, 124 S . C t .

1 , 4 (2003).

9 1. Ineffective assistance of counsel.

“The Sixth Amendment guarantees criminal defendants the

effective assistance of counsel. That right is denied when a

defense attorney’s performance falls below an objective

standard of reasonableness and thereby prejudices the

defense.” Yarborough, 124 S . C t . at 4 (citing Wiggins v . Smith, 123 S . C t . 2527, 2529 (2003); Strickland v . Washington,

6 8 , 687 (1984)). Counsel is afforded “wide latitude

in deciding how best to represent a client.” Id. Therefore,

counsel’s performance is constitutionally deficient only if it

was objectively unreasonable. Smith v . Robbins,

5 9 ,

285 (2000). To demonstrate prejudice, a petitioner must show

that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.” 3 Strickland, 466 U.S. at 6 9 4 . A “reasonable probability” is one “sufficient to undermine

confidence in the outcome.” Id.

By Merritt’s account, he has been the victim of a

succession of constitutionally deficient lawyers. Merritt

3 To the extent that Merritt contends that the state court should have presumed prejudice in his case under United States v . Cronic,

( 1 9 8 4 ) , the facts do not support such a conclusion. See Scarpa v . DuBois,

, 12-13 (1st Cir. 1 9 9 4 ) .

10 asserts that his trial counsel, Barbara Bradshaw, provided

ineffective assistance because she did not advise him of his

Sixth Amendment right to compel witnesses to testify in his

favor at trial and because she allowed the trial judge’s

remarks to dissuade Merritt from insisting on calling

witnesses in his favor. He also asserts that Bradshaw should have interviewed Laster before deciding whether or not to call

her as a witness. He contends that his appellate counsel,

Gary Apfel, was ineffective because he failed to raise the

issue of ineffective assistance of trial counsel on appeal,

due to an actual conflict of interest. He further contends

that his counsel appointed to represent him for his motion for

a new trial, Richard Gaudreau, was ineffective because he did

not appeal the issue of ineffective assistance.

Merritt asserted that he was entitled to a new trial based on newly discovered evidence, Laster’s exculpatory

testimony, and the ineffective assistance of Bradshaw, due to

her failure to call Laster to testify at his trial. 4 A

hearing was held on the motion. Judge Murphy found that

Laster’s testimony did not qualify as newly discovered

4 In the course of the proceeding on Merritt’s motion for a new trial, Laster testified in a deposition that Merritt had no knowledge that the credit cards she used were not her own.

11 evidence and that Attorney Bradshaw’s representation was not

deficient because Merritt’s refusal to allow a continuance

prevented his counsel from presenting that evidence.

In denying Merritt’s petition for a writ of habeas

corpus, Judge Mangones concluded that contrary to Merritt’s

argument, he did not preserve an objection to Attorney Bradshaw’s trial strategy but instead refused to allow a

continuance that would have allowed Bradshaw to depose Laster.

Given that circumstance, Judge Mangones ruled, “Attorney

Apfel’s failure to raise this issue does not constitute

ineffective assistance of counsel.” Merritt v . Coplan, 02-E-

3 3 6 , at *7 (N.H. Sup. C t . Jan. 6, 2 0 0 3 ) . Judge Mangones also

ruled that if Attorney Gaudreau had failed to raise the issue

of ineffective assistance of counsel on appeal (which

apparently was in question), that failure did not constitute ineffective assistance of counsel under state law because

Merritt failed to show that he was prejudiced by the

representation of either Attorney Apfel or Attorney Gaudreau.

In response to Merritt’s motion for reconsideration,

Judge Mangones again ruled that Merritt could not show that he

received deficient representation or that he was prejudiced by

Attorney Apfel’s failure to raise an ineffective assistance of

counsel claim on direct appeal. The judge also found that

12 Attorney Gaudreau had raised the ineffective assistance claim on appeal, contrary to Merritt’s claim. Because the state court decided the ineffective assistance of counsel claims under state law, rather than federal law, this court must determine whether those decisions were contrary to federal law as established by the Supreme Court. As noted above, under Supreme Court precedent, to be constitutionally deficient, counsel’s performance must be objectively unreasonable. See Yarborough, 124 S . C t . at 4 . To satisfy the prejudice prong of the test, Merritt must show that the asserted errors by counsel are sufficient to undermine confidence in the outcome of his case. Strickland,

9 4 .

Based on the state court findings, which Merritt has not challenged, Attorney Bradshaw had no choice but to proceed with trial without calling Laster when Merritt refused to allow a continuance. As such, the state court’s ruling that Attorney Bradshaw provided good legal advice which Merritt decided to ignore is not contrary to the federal standard that counsel’s advice was not objectively unreasonable. 5 For the

5 Judge Murphy summarized his conclusion as follows: “[Merritt] cannot on the one hand tie his counsel’s hands behind her back by refusing to consent to a continuance in order to obtain favorable testimony and then complain that his

13 same reason, the state court’s decision that Attorney Apfel’s

failure to raise the issue on direct appeal was neither

deficient representation nor prejudicial is not contrary to

the federal standard. Based on the state court’s decision on

reconsideration, it is not clear whether or not Attorney

Gaudreau raised the ineffective assistance of counsel issue on appeal. 6 As the state court initially ruled, however, even if

the issue were not raised on appeal, its absence did not

prejudice Merritt’s case.

Merritt has not shown that the state court’s decisions on

his ineffective assistance of counsel claims were contrary to

federal law as established by the Supreme Court. Therefore,

the Warden is entitled to summary judgment as to those claims.

2. Judicial intrusion.

Merritt asserts that Judge Murphy’s remarks to him

concerning Laster’s note were an intrusion into his

counsel’s failure to obtain that testimony provides a basis for a new trial. . . . Trial counsel gave the defendant the benefit of sound and competent advice; the defendant chose to reject it and should not now be able to take advantage of his refusal.” Merritt, 96-S-680, 6 8 1 , 682 at *7 & * 8 . 6 The habeas record in this court does not include the documents submitted on appeal from the denial of Merritt’s motion for a new trial.

14 relationship with his attorney in violation of due process,

his right to compel witnesses, and his right to the effective

assistance of counsel. Because the interchange between Judge

Murphy and Merritt occurred before trial and out of the

presence of the jury, Merritt does not assert judicial

misconduct in the conduct of the trial before the jury. Cf. Liteky v . United States,

4 0 , 555-56 (1994). Merritt

does not cite, and the court has not found, a Supreme Court

case that addresses the issue he raises. In contrast, a trial

judge may, and sometimes must, inquire into certain parts of

the attorney-client relationship without violating a

defendant’s constitutional rights. S e e , e.g., Mickens v .

Taylor,

(2002); United States v . Reyes,

1 1 , 515-16 (1st Cir. 2 0 0 3 ) ; United States v . Welty,

8 5 , 190-91 (3d Cir. 1 9 8 2 ) . In denying Merritt’s motion for reconsideration of the

denial of his habeas petition, Judge Mangones found that Judge

Murphy’s remarks did not influence the effectiveness of

Attorney Bradshaw and did not intrude into the attorney-client

relationship. Merritt does not challenge those findings,

which are amply supported by the record. The state court

decision is not contrary to established federal law.

15 3. Sixth Amendment right to compel witnesses.

Merritt contends that his Sixth Amendment right to compel

witnesses to testify in his favor was violated when Laster was

not called to testify. The Sixth Amendment right to

compulsory process is well established. S e e , e.g., Taylor v .

Illinois,

0 0 , 401-02 (1988) (citing Washington v . Texas,

4 , 17-19 (1967)). However, as the state

court judges found, Merritt refused to allow a continuance

that was required to have Laster testify. Therefore, he was

not denied compulsory process but instead decided not to avail

himself of that process.

4. Actual innocence and due process.

Merritt argues that Laster’s testimony exonerates him and

is proof of his actual innocence under Schlup v . Delo,

(1995). He asserts that he was entitled to an

evidentiary hearing on his actual innocence claim as part of

his habeas proceeding in state court. Because he was denied a

hearing, he contends, he was denied due process.

A claim of actual innocence under Schlup is not a

constitutional claim for purposes of a habeas petition but

instead is a “gateway” for having another constitutional claim

addressed by the court. Schlup,

1 5 . A habeas

16 petitioner may overcome a procedural bar to his petition if he

can show that a constitutional error “probably resulted in the

conviction of one who is actually innocent.” Bousley v .

United States,

1 4 , 623 (1998) (quotation marks

omitted). “To establish actual innocence, petitioner must

demonstrate that, ‘in light of all the evidence it is more likely than not that no reasonable juror would have convicted

him.’” Id. (quoting Schlup,

) (additional

quotation marks omitted).

Unless Merritt intended to use his claim of actual

innocence to overcome the state habeas court’s ruling in his

habeas proceeding of procedural default as to his claim of

ineffective assistance of trial counsel, his claim is

misplaced. Even if he were using the assertion of actual

innocence as a gateway to obtain review of that claim, however, as is discussed above, Merritt was not able to show

that a constitutional error led to his conviction. Therefore,

his claim of actual innocence did not support his state court

habeas petition. Assuming without deciding that Schlup would

apply, the state court found that Laster’s evidence was not

unavailable at trial and that Laster’s testimony would not

have been sufficiently persuasive to meet the Schlup standard.

17 Conclusion

For the foregoing reasons, the Warden’s motion for

summary judgment (document n o . 6 ) is denied in part and

granted in part as is discussed more fully in this order. In

considering the merits of the plaintiff’s claims, the court

rules that the state court decisions in his criminal case and his state habeas proceeding were not contrary to established

federal law and that he is not entitled to a writ of habeas

corpus pursuant to § 2254(d).

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

Joseph A . DiClerico, J r . United States District Judge March 1 1 , 2004

cc: Kevin Merritt, pro se Nicholas P. Cort, Esquire

18