Chambers v . Cattell, Warden, NHSP CV-04-258-JD 12/20/05 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Randolph L . Chambers

v. Civil N o . 04-cv-258-JD Opinion N o .

Bruce W . Cattell, Warden, New Hampshire State Prison

O R D E R

Randolph L . Chambers seeks habeas corpus relief pursuant to

from his convictions and sentences for selling

and conspiring to sell heroin. Following preliminary review and

a habeas petition in state court, Chambers is proceeding on

claims of ineffective assistance of counsel, denial of the right

to a speedy trial, and a double jeopardy violation. The warden

moves for summary judgment on the grounds that the double

jeopardy and speedy trial claims were procedurally defaulted,

that no violation of the right to a speedy trial occurred, that

Chambers was not subjected to double jeopardy, and that his

counsel was not constitutionally ineffective.

Chambers opposes the warden’s motion, arguing that material

factual issues preclude summary judgment and that he cannot

present facts essential to his opposition without discovery.

Chambers raises Federal Rule of Civil Procedure 56(f) that

provides: “Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated

present by affidavit facts essential to justify the party’s

opposition, the court may refuse the application for judgment or

may order a continuance to permit affidavits to be obtained or

depositions to be taken.”

A party who seeks the protection of Rule 56(f) must provide a plausible basis to believe that additional discovery would

produce information which would raise a material factual dispute.

Filiatrault v . Comverse Tech., Inc.,

3 1 , 138 (1st Cir.

2001). Further, “[a] habeas petitioner, unlike the usual civil

litigant in federal court, is not entitled to discovery as a

matter of ordinary course.” Bracy v . Gramley,

(1997). In habeas cases, discovery is available only “if, and to

the extent that, the judge in the exercise of his discretion and

for good cause shown grants leave to do s o , but not otherwise.” Rule 6(a) of the Rules Governing § 2254 Cases.

Chambers states in his affidavit that discovery is necessary

to determine why his trial attorney did not object to the state’s

use of the deposition of Scott Saltonstall at trial; to depose

the trial judge about her decision to allow evidence of Chambers’

sale of heroin, for which he had been previously convicted; and

to depose his appellate attorney to determine why all of the

issues raised in the notice of appeal were not briefed.

2 Chambers’ requests for discovery indicate his lack of

understanding of the proceedings but do not suggest that

discovery would lead to factual support for his opposition to

summary judgment. The issues he raises are covered in the

record. A review of Chambers’ claims and the record submitted in

this case demonstrates that no factual issues are presented which would require amplification through discovery.

Background

On February 1 2 , 2001, Chambers was arrested, incarcerated,

and arraigned on a charge of selling a controlled substance. He

was subsequently indicted on one count of the sale of heroin to

Nancy Szalucka and, in a separate indictment, on one count of

conspiracy to sell more than five grams of heroin. He pleaded

not guilty to both charges. He was tried and convicted on the

sale of heroin charge in June of 2001.

On June 2 7 , 2001, Chambers filed an assented-to motion to

continue the trial on the conspiracy charge, which was scheduled

to begin on July 1 6 , 2001, to avoid selecting the jury from the

panel that was used for Chambers’ first trial. The state then

moved to consolidate Chambers’ conspiracy trial with the trial of

Andrew Tucker, his co-conspirator, and to continue the trial

until September of 2001. The state’s motion to consolidate and

3 continue the trial was granted.

Before trial on the conspiracy charge began, the state moved

to strike the reference to Nancy Szalucka in the indictment,

which was granted. Chambers’ attorney argued that use of

evidence of that sale against Chambers violated the prohibition

against double jeopardy and New Hampshire Rule of Evidence 404(b). Evidence of Chambers’ sale of heroin to Szalucka was

allowed at trial but was limited by instruction to the conspiracy

charge against Tucker.

Scott Saltonstall, another participant in drug activities

with Chambers and Tucker, was scheduled to testify as a witness

for the state. On the day he was expected to testify,

Saltonstall was at the courthouse in a holding cell when he

refused to testify and invoked his Fifth Amendment right not to

do s o . Saltonstall also refused the state’s offer of use immunity because of the potential of federal prosecution based on

his testimony. Based on those circumstances, the trial judge

found that Saltonstall was unavailable and allowed the state to

present Saltonstall’s deposition at trial. Chambers’ attorney

did not object to using the deposition. Chambers was convicted

on the conspiracy charge.

On appeal from the sale conviction, Chambers raised issues

of late discovery and the jury’s consideration of the transcript

4 of an audio recording. On appeal from the conspiracy conviction,

Chambers raised issues of late discovery, speedy trial, venue,

double jeopardy, inadmissible evidence of prior bad acts, and the

evidence used to show the substance was heroin. The only issues

briefed on appeal, however, were whether the evidence of the sale

to Szalucka was inadmissible bad act evidence and whether it was error to allow the jury to have the transcript of the audiotape

of the recorded sale during deliberations. The New Hampshire

Supreme Court issued a brief order on November 1 3 , 2003, in which

it affirmed Chambers’ convictions, finding that the transcript

issue was not properly preserved and that because the evidence of

the sale to Szalucka was admitted only against Tucker, no

violation of Rule 404(b) occurred.

Chambers filed a petition for a writ of habeas corpus and a

motion to proceed in forma pauperis in this court on July 1 2 , 2004. In response to the magistrate judge’s preliminary review,

which allowed Chambers to file an amended petition to demonstrate

that the issues he raised had been exhausted, Chambers filed a

petition for habeas corpus in state court. His petition was

denied on February 1 0 , 2005, as follows: “The petition is denied

on the grounds that it is apparent from the application that the

defendant is not entitled to the relief requested.” The New

Hampshire Supreme Court declined his appeal on May 5 , 2005.

5 Discussion

In support of his petition for habeas relief, Chambers

contends that his trial counsel was constitutionally ineffective

in failing to object to the use of Scott Saltonstall’s deposition

at trial, that he was denied his right to a speedy trial, and

that he was subjected to double jeopardy due to the state’s use of evidence of his sale of heroin to Szalucka during his

conspiracy trial. The warden argues that he is entitled to

summary judgment because the speedy trial and double jeopardy

claims were procedurally defaulted and Chambers cannot show cause

and prejudice to overcome the default. The warden also argues

that he is entitled to summary judgment on the merits of the

claims.

A. Procedural Default

The doctrine of procedural default “has its roots in the

general principle that federal courts will not disturb state

court judgments based on adequate and independent state law

procedural grounds.” Dretke v . Haley,

(2004).

Therefore, “[g]enerally, habeas review is precluded when a state

court reaches its decision on an independent and adequate state

law ground.” Horton v . Allen,

5 , 80 (1st Cir. 2004).

An exception to the rule exists when a habeas petitioner can show

6 cause and prejudice for the procedural default or that “a

constitutional violation has probably resulted in the conviction

of one who is actually innocent of the substantive offense.”

Dretke,

(internal quotation marks omitted).

In this case, however, the state court did not base its

decision on state law grounds. The superior court stated only that Chambers’ petition was denied “on the grounds that it is

apparent from the application that the defendant is not entitled

to the relief requested.” In the absence of any further

explanation, this court cannot assume that the superior court

found Chambers had defaulted his claims.1 The supreme court

declined to accept the appeal without giving a reason.

Therefore, the procedural default doctrine is inapplicable in

this case.

B. Standard of Review

The strict and deferential standard of review provided in

(d) applies only to claims that were adjudicated on

the merits by the state court. Fortini v . Murphy,

9 ,

1 Procedural default would not have been applicable to Chambers’ ineffective assistance of counsel claim, which was dismissed on the same grounds as the other claims, suggesting that procedural default may not have been the basis of the superior court’s decision. See Humphrey v . Cunningham,

(1990).

7 47 (1st Cir. 2001). When, as here, the state court did not

address the merits of the claims, this court reviews the claims

under a de novo standard. Dugas v . Coplan,

1 7 , 327

(2005).

C. Ineffective Assistance of Counsel

Chambers contends that his trial counsel was

constitutionally ineffective because he did not object to the

state’s use of Scott Saltonstall’s deposition, when Saltonstall

was at the courthouse in a holding cell and, therefore,

physically available to testify at trial. “An ineffective

assistance of counsel claim requires the petitioner to

demonstrate (1) that ‘counsel’s representation fell below an

objective standard of reasonableness,’ and (2) ‘a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.’” Dugas, 428

F.3d at 327 (quoting Strickland v . Washington,

6 8 , 694

(1984)). To show that counsel’s representation fell below an

objective standard of reasonableness, Chambers must establish

that his “counsel’s performance was deficient in some way

sufficiently substantial to deny him effective representation.”

United States v . Grace,

9 , 37 (1st cir. 2004).

The circumstances Chambers challenges do not show a

8 deficient performance by trial counsel. In Crawford v .

Washington,

6 , 68 (2004), the Supreme Court held that

the Sixth Amendment precluded the use of testimonial hearsay

unless the witness was unavailable and the defendant had a prior

opportunity to cross examine the witness. A witness is

unavailable for purposes of testifying in a criminal trial i f , as Saltonstall did, he has invoked his right under the Fifth

Amendment not to testify. United States v . DeLuca,

4 ,

38 (1st Cir. 1998). It is undisputed that Chambers’ trial

counsel cross-examined Saltonstall as part of the deposition that

was read at Chambers’ trial. Therefore, Chambers’ counsel’s

failure to object to the state’s use of Saltsonstall’s deposition

was not deficient representation because the use of the

deposition was both lawful and appropriate.

D. Speedy Trial

Chambers contends that the time between his arrest on

February 1 2 , 2001, and the beginning of his conspiracy trial on

September 1 8 , 2001, was sufficiently long to violate his right to

a speedy trial. The Sixth Amendment guarantees a criminal

defendant the right to a speedy trial. United States v . Casas,

3 , 33 91st Cir. 2005). If the time between a

defendant’s arrest or indictment, whichever occurs first, and his

9 trial approaches one year or more, the delay is presumptively

prejudicial, requiring a further inquiry into the circumstances

that caused the delay. Doggett v . United States,

4 7 ,

651-52 (1992); United States v . Vega Molina,

1 1 , 533

(1st Cir. 2005); Rashad v . Walsh,

7 , 33-34 (1st Cir.

2002). When further inquiry is required, the court considers four factors: the length of delay, reasons for the delay, whether

the defendant asserted his speedy trial right, and whether any

prejudice was caused by the delay. Barker v . Wingo,

(1972); Casas,

3 .

The time between Chambers’ arrest and his trial on the

conspiracy charge was seven months and six days. In other cases,

courts have found that a seven month delay was not presumptively

prejudicial. See, e.g., United States v . Lozano,

(8th Cir. 2004) (repeating previous holding that “a little over seven months was too brief a delay to trigger review of a

defendant’s Sixth Amendment speedy trial claim”); Hurn v .

McGuire,

, at *6 (D. Kan. May 6, 2005) (holding

that delay of less than eight months not presumptively

prejudicial and citing cases); United States v . Cervantes,

4 , 28 n.1 (D.P.R. 1995) (“An exhaustive survey of

published federal speedy trial cases in which presumptive

prejudice was considered reveals that to date the shortest delay

10 deemed presumptively prejudicial is around seven and one-half

months.”).

Even if the delay of seven months and six days were deemed

to require additional inquiry, the remaining Barker factors

predominate against finding a speedy trial violation. The

reasons for delaying the conspiracy trial were to consolidate Chambers’ case with that of his co-conspirator, Tucker, and

because neither Chambers nor Tucker wanted to draw a jury from

the panel that had been used to draw the jury for Chambers’ trial

on the selling charge. Those were legitimate reasons for a short

delay in the trial date. Although Chambers did assert his right

to a speedy trial, he has not shown that he suffered any actual

prejudice as a result of the delay. Therefore, Chambers has not

shown that he was convicted in violation of his Sixth Amendment

right to a speedy trial.

E. Double Jeopardy

The Double Jeopardy Clause of the Fifth Amendment protects

defendants from being prosecuted twice for the same offense.

U.S. Const. Amend. V ; Witte v . United States,

(1995). Chambers argues that the state violated the Double

Jeopardy Clause by introducing evidence, during his conspiracy

trial, of his sale of heroin to Szalucka, which was the basis of

11 his conviction on the sale charge. He contends that because the

jury considered that evidence in convicting him of conspiracy he

was tried twice for that offense.

As the warden points out, the substantive crime of selling

heroin is a different offense from the crime of conspiracy to

sell heroin. See United States v . Fornia-Castillo,

2 , 69 (1st Cir. 2005). Therefore, if Chambers had been prosecuted

for conspiracy to sell heroin to Szalucka in the second trial,

after his conviction on the selling charge, that prosecution

would not have violated the Double Jeopardy Clause. More

importantly, that is not what happened in this case. Instead,

the government’s conspiracy case against Chambers was predicated

on sales to people other than Szalucka. The evidence of the sale

to Szalucka was limited to the state’s case against Chambers’

co-conspirator, Tucker. No double jeopardy violation occurred.

Conclusion

For the foregoing reasons, the warden’s motion for summary

judgment (document n o . 19) is granted. The petition for a writ

12 of habeas corpus is denied. The clerk of court shall enter

judgment accordingly and close the case.

SO ORDERED.

Josfeph A. DiClerico, Jr. S~ United States District Judge

December 20, 2005

cc: Randolph L. Chambers, pro se Susan P. McGinnis, Esquire

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