Porter v . Warden CV-03-200-PB 09/29/05 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Gary M . Porter

v. Case No. 03-CV-200-PB Opinion No.

Warden, New Hampshire State Prison, et a l .

MEMORANDUM AND ORDER

Gary Porter has filed a petition for writ of habeas corpus,

challenging his conviction for aggravated felonious sexual

assault,

-A:2, I ( a ) , and kidnaping,

. The primary grounds for his

petition are: (1) that the trial court improperly denied him

access to a medical and psychological evaluation of the victim;

(2) that the trial court improperly prevented him from cross-

examining the victim regarding past-allegations of sexual

assault; and (3) that the prosecutor improperly appealed to the

passions and prejudices of the jury in her closing argument. The

parties have filed cross-motions for summary judgment. For the

following reasons, I grant the state’s motions and deny Porter’s

motion. I. BACKGROUND

A. The Assault1

The facts giving rise to this case occurred on November 2 7 ,

1995, when Porter attacked and raped his girlfriend, Judy

Rossignol, in his mobile home in Weirs Beach, New Hampshire.

Trial Transcript (“Tr.”), Sept. 1 0 , 1996 at 87-107. According to

Rossignol, Porter was angry over the fact that she wanted to end

their relationship. In an uncontrolled fury, he pinned her to

his living room couch, choked her with his hands, wrapped his

leather belt around her neck, and dragged her by her feet to his

bedroom where he continued to choke and threaten her, and where

he ultimately raped her.

Rossignol was finally able to escape when Porter, a

diabetic, fell into a coma after attempting suicide by injecting

himself with a heavy dose of insulin. Id. at 117-22. He was

later found and saved by emergency medical technicians only after

Rossignol called the fire department from her parents’ home to

alert authorities that Porter’s life was in danger. Id. at 126.

1 I describe the background facts in a manner that is “consistent with the state court findings” of guilt. See McCambridge v . Hall,

4 , 26 (1st Cir. 2002).

-2- Rossignol gave a sworn statement describing the attack to

Officer Douglas Jameson of the Laconia Police Department the next

day. Id. at 129. She then underwent a physical examination at

Lakes Region General Hospital where Officer William Robarge

photographed her body.2 Id. at 130-31. The photographs revealed

bruising on her neck, on her right ankle, on the upper part of

her chest, on her arms, and on the inner part of her thigh. Id.

at 132-34.

Rossignol reported that her clothes, including her

brassiere, were torn from her body during the attack, as were the

multiple sets of earrings she had been wearing that evening. Id.

at 92-99. She also provided the ripped clothing to investigating

officers the following day. Id. at 136-38. The earrings, which

were embedded in Porter’s couch, were recovered by Officers

Jameson and Clary that afternoon. Tr., Sept. 1 3 , 1996 at 746-48.

In the course of their search, the officers also recovered a

2 According to Rossignol’s report, Porter had ejaculated on her chest. Tr., Sept. 1 0 , 1996 at 107-08. Rossignol then wiped the ejaculation off. The physical examination thus produced no evidence of seminal discharge.

-3- note, penned by Rossignol to her son, John,3 that Rossignol

reported she had begged Porter to allow her to compose after

Porter had repeatedly threatened her life. Tr., Sept. 1 0 , 1996

at 112.

B. Pre-trial Rulings

Porter was indicted for aggravated felonious sexual assault,

-A:2, I ( a ) , and two counts of

kidnaping,

, on January 2 5 , 1996.4

On April 2 6 , 1996, Porter filed his first pre-trial motion for

discovery. In this motion, he stated that Rossignol had been

“convicted in the Laconia District Court of DWI” and he requested

that the state produce “any substance abuse evaluation and

assessment” that may have resulted from this conviction. App. to

Notice of Appeal to the New Hampshire Supreme Court, Vol. I at

59. This motion was denied in a May 2 9 , 1996 order.

at 6 4 .

According to the court, “The victim’s medical records, if any,

3 The note was written on yellow paper and stated, “To little John. I love you. Please remember m e . Love mum.” Tr., Sept. 1 0 , 1996 at 111-112. 4 Porter was also charged and acquitted of attempted escape, see

; 642:6.

-4- are personal and confidential,”

at 73 (citing

, X (1995 Supp.), “Patient’s Bill of Rights”), and a

mere “general assertion” about the need to obtain this type

information to prepare a cross-examination, or to offer it as

relevant evidence at trial, was insufficient to trigger the right

to have the materials reviewed in camera or otherwise produced.

Id. at 73-74.

The prosecutor then filed her own pre-trial motion seeking,

among other things, to prevent Porter from (1) questioning

Rossignol regarding a past allegation of rape that Porter claimed

Rossignol had made against her ex-boyfriend, Calvin Dunn, and (2)

presenting evidence of Rossignol’s alcoholism. T r . of Mot.

Hr’g., Sept. 3 , 1996 at 4 4 . Ruling from the bench, the court

held that although Porter could not offer extrinsic evidence that

Rossignol had made a past allegation of sexual assault against

Dunn, he could inquire about the issue on cross-examination. Id.

at 6 1 . At the same time, the court barred Porter from

questioning Rossignol about her alcoholism because it ruled that

Porter had failed to demonstrate how Rossignol’s past problems

-5- with alcohol were relevant to her credibility. Id. at 61-62. 5

Porter responded by renewing his motion to discover evidence

contained in Rossignol’s medical and psychological records. App.

to Notice of Appeal to the New Hampshire Supreme Court, Vol. II

at 131. He specifically asked for evidence regarding “substance

abuse and/or psychological evaluations” that had been conducted

eight months earlier while Rossignol was attending a court-

mandated Multiple Offender Program (“M.O.P.”). Id. at 132. 6 The

basis for his motion was his claim that the evaluation contained

information regarding Rossignol’s alcoholism and mental

instability, evidence which he again argued was relevant to her

credibility. Id. In addition, he referred to the Dunn assault,

stating that “the alleged victim in the past has used this

5 The court granted Porter leave to revisit the issue as the trial unfolded. T r . of Mot. Hr’g., Sept. 3 , 1996 at 6 2 . 6 The “M.O.P.” or “Multiple Offender Program” is run by the New Hampshire Department of Health and Human Services. See http://www.dhhs.nh.gov/DHHS/IDIPMOP/multiple-offender.htm (last visited, Sep. 2 6 , 2005). A person is required to attend an M.O.P. upon conviction for a second or subsequent D.W.I. offense in the last seven to ten years. Id. The M.O.P. consists of a seven-day/six-night residential program, alcohol and drug education, and an evaluation conducted by a licensed or certified alcohol and drug counselor. Id.

-6- alleged incident of rape assault in the termination of prior relationship”7 (sic). Id. at 136.

Porter read his motion for discovery into the record at the

beginning of trial.8 Tr., Sept. 1 0 , 1996 at 9-17. For the first

time, he also charged that the M.O.P. evaluation referred to

sexual assault allegations that Rossignol allegedly had made

against a minister and a friend of her father. Id. at 1 5 . The

prosecutor responded by again opposing Porter’s request for

access to the M.O.P. evaluation. Id. at 17-18. She also asked

the court to reconsider its prior decision to allow cross-

examination concerning the Dunn assault and sought an order

barring Porter from questioning Rossignol about the alleged

assaults by the minister and her father’s friend. Id.

The court ruled on these motions from the bench. Adopting

the prosecutor’s argument that Porter had failed to demonstrate

7 As the New Hampshire Supreme Court noted in resolving Porter’s direct appeal, however, Porter “did not argue to the trial court that this prior allegation of sexual assault was mentioned in the substance abuse evaluation.” State v . Porter,

6 , 100 (1999). 8 Prior to presenting his motion, Porter waived his right to counsel, opting instead to represent himself with the aid of standby counsel. Tr., Sept. 9, 1996 at 2-14.

-7- how evidence relating to Rossignol’s alcoholism or mental

instability was relevant to her credibility, the court denied

Porter’s motion for access to the M.O.P. evaluation.

at 2 7 .

The court also declined to reconsider its ruling with respect to

the Dunn assault, but granted the prosecutor’s request to bar

cross-examination regarding the other assaults. The court based

its latter ruling on the fact that Porter had failed to give the

prosecutor advance notice of his intention to introduce evidence

concerning the assaults.9 Porter responded to the ruling by

stating, “All right. I can – all right, Your Honor.”

at 3 8 .

C. The Closing

Evidence closed on the fourteenth day of trial, and the

parties gave their summations. In the state’s closing, the

prosecutor called Porter “a pathological liar and a manipulator

9 Superior Court Rule 100-A requires that “any defendant who intends to offer evidence of specific prior sexual activity of the victim with a person other than the defendant shall file a motion” describing his justification for doing so “forty-five (45) days prior to the scheduled trial date.” N.H. Super. C t . R. 100-A. The court referred to this rule in its discussion, but at the prosecutor’s urging, cited State v . Ellsworth,

(1992), when it made its ruling. Ellsworth does not discuss Rule 100-A.

-8- to boot,” “desperate,” “dishonest,” “jealous,” “possessive,”

“inhumane,” “controlling,” a “performer and . . . charmer,”

“brutal,” and “crafty.” Tr., Sept. 2 6 , 1996 at 141-46.

Referring to the fact that Rossignol had testified on cross-

examination for three days, the prosecutor further commented that Judy Rossignol told you the truth here. She has no motive whatsoever to tell you anything but that. Why would she go through all of this, questioning by the police, probing at the hospital, physical probing, and then here on the witness stand [sic] revictimized by the defendant in cross-examination for days [sic] she wasn’t proud to come in here and tell you about these sordid things.

. With respect to the state’s other witness, the

prosecutor stated, “The police didn’t lie to you. . . . The EMT

didn’t lie to you. . . . All of them told it like it was. And

all of them were subjected to the fire of this defendant’s

protracted and often meaningless questioning.”

.

She then observed,

[Porter’s] the one who is jealous. He’s the one who was possessive. He’s the one who needed to be in control. And he still needs to be in control. You saw his cross-examination yesterday afternoon and this morning. Doesn’t he want to be in control ultimately?

. Then, as an examples of this type of behavior,

the Prosecutor asked the jury to recall how [Porter] “snapped at

-9- [Rossignol when she] was on the witness stand,”

, and

how “he tortured [her] that night and again here on the witness

stand.”

. The prosecutor further asked the jury to

“[t]hink about this: If he’s so bold and inhumane in this open

courtroom, what must he have been like that night.”

.

The prosecutor closed by stating:

Judy Rossignol told you the truth about that night. And it was a night that she’d rather forget. And she told you the pain, and she lived the pain on her face. You saw that as she spoke to you. And she escaped the demon clutches of that defendant when he went comatose with his back arched, convulsing with his eyes open.

.

Porter objected twice during the prosecutor’s closing

argument, once when the prosecutor was describing inconsistencies

in the way Porter’s home was arranged when the police searched

i t ,

at 1 5 7 , and a second time when the prosecutor recounted a

conversation Rossignol had with Porter while he was in the

hospital recovering from his suicide attempt.

. At no

point did Porter object to any other statement or argument made

by the prosecutor.

D. The Jury Instructions and the Verdict

Following closing arguments, the court instructed the jury

-10- as to each of the offenses with which Porter was charged, and on

September 2 7 , 2005, the jury found Porter guilty of two counts of

kidnaping10 and one count of aggravated felonious sexual assault.

Tr., Sept. 2 7 , 1996 at 5-7. The court then sentenced Porter to

consecutive terms of 10 to 30 years for both the aggravated

felonious sexual assault conviction and the first kidnaping

conviction. No sentence was imposed for the second kidnaping

conviction. T r . of Sentencing Hr’g, Nov. 2 6 , 1996 at 79-81.

E. Porter’s Direct Appeal

Porter immediately appealed his convictions to the New

Hampshire Supreme Court. In his appeal, he argued that the trial

court had erred i n :

(1) excluding evidence of the victim’s character; (2) declining to review in camera the victim’s substance abuse evaluation; (3) imposing a notice requirement for the admission of alleged prior false allegations of sexual assault; (4) denying him an opportunity to recall a witness; (5) consolidating the charges; (6) permitting the State to cross-examine him concerning facts underlying prior convictions; (7) failing to dismiss alternative kidnaping indictments; and (8)

State v . Porter,

. Porter further argued “that

10 The jury convicted Porter of both kidnaping and kidnaping with the purpose to commit an offense against the person confined.

-11- the prosecutor had violated his right to due process during

closing arguments by repeatedly disparaging the manner in which

he had conducted his defense.”

at 9 8 .

The supreme court rejected all nine of Porter’s claims but

found that the trial court had improperly based certain sentence

enhancements upon previously served concurrent sentences. It

therefore remanded the case to the trial court for resentencing.

. 11 The court directly addressed the merits of Porter’s

claims that the trial court had improperly refused to conduct an

in camera review of the privileged M.O.P. evaluation, and that

the trial court had improperly denied Porter his right to cross-

examine Rossignol regarding past allegations of sexual assault.

As to the first claim, the court cited State v . Gagne,

(1992) for the proposition that “a defendant is entitled

to an in camera review of confidential or privileged records if

the defendant establishes a reasonable probability that the

records contain information relevant and material to his

11 The resentencing hearing took place on November 1 2 , 1999. The trial court modified Porter’s sentence to 10 to 20 years for the aggravated felonious sexual assault conviction, and three-and-one-half to seven years on the kidnaping conviction. Tr. of Sentencing Hr’g., Nov. 1 2 , 1999 at 26-28.

-12- defense.” Porter,

9 . The court then ruled that

the trial court refused to conduct an in camera review because the defendant failed to demonstrate a reasonable probability that the records sought contained evidence relevant and material to his defense. Since the victim’s alleged emotional instability, alcoholism, and failure to follow treatment recommendations had no bearing on her character for truthfulness at trial, we agree with the trial court’s conclusion.

. As to Porter’s claim that the evaluation

additionally “revealed an admission by the victim that she had

accused a former boyfriend of sexual assault,” the court rejected

Porter’s arguments by pointing out (1) that Porter did not argue

to the trial court that this allegation was in fact included in

the report, and (2) that he further failed to argue that it was

“false and material to his defense.”

.

The court next considered Porter’s claim that the trial

court had improperly prevented him from cross-examining Rossignol

regarding other past allegations of sexual assault. As to this

line of argument, the court ruled that Porter had “acquiesced”

rather than “objected” to the trial court’s ruling on the issue,

and that the trial court’s ruling must therefore stand.

at

100-101 (citing State v . Brodowski,

9 7 , 200 (1991) for

-13- the proposition that “we see no reason to depart from the general

principle that the rules of preservation are not relaxed for a

pro se defendant”). Finally, the court rejected Porter’s three

remaining claims, including his prosecutorial misconduct claim,

because the arguments were “either meritless . . . or were not

properly preserved for appellate review.” Porter,

(citations omitted).

F. Porter’s Petition for Writ of Habeas Corpus in State Court

Porter petitioned the New Hampshire Superior Court for

habeas corpus relief on April 2 8 , 2000. Among the grounds

included in his petition was a claim that the poor conditions of

the state prison library deprived him of his right to access the

courts. See Resp’t’s App. to Mot. for Summ. J. (Doc. N o . 2 7 ) ,

Ex. E at 9. The court rejected this challenge, noting that to

succeed on such a claim, a petitioner must prove that he suffered

actual injury to a viable legal claim.

Ex. F at 6-7. The

court ruled that the fact that Porter’s briefs included case

citations, in addition to the fact that he had had access to

counsel at all stages of his litigation, proved that he had

-14- suffered no such injury.12

at 7 .

G. Porter’s Federal Petition for Writ of Habeas Corpus

Porter filed the present petition for writ of habeas corpus

(Doc. N o . 3 ) in federal court on May 5 , 2003. His surviving

claims include:

(1) a claim that the trial court erred both by refusing to review Rossignol’s M.O.P. evaluation in camera and by refusing to compel the prosecutor to produce the evaluation;

(2) a claim that Porter had been denied his right to confront and cross-examine Rossignol regarding past allegations of sexual assault she had made against a minister and a friend of her father’s;

(3) a claim that the state’s closing argument constituted an unconstitutional appeal to the passions and prejudices of the jury;

(4) a claim that the library facilities available to Porter in prison were so poor that Porter had been denied access to the courts;

(5) a claim that Porter had been denied effective assistance of counsel before trial because his attorney had failed to argue effectively that he was entitled to Rossignol’s medical and psychological evaluations;

(6) a claim that Porter had been convicted in violation of the Double Jeopardy clause because the jury found Porter guilty of kidnaping on alternative theories; and

12 Porter appealed this decision to the New Hampshire Supreme Court, but the court declined to review Porter’s claim. Resp’t’s. App. to Mot. for Summ. J. (Doc. N o . 2 7 ) , Ex. G, at 1 .

-15- (7) a claim that the trial court had improperly instructed the jury regarding the kidnaping charges by conflating the two alternative theories upon which a guilty verdict may rest.13

The parties have filed cross-motions for summary judgment with

respect to these claims. I consider their arguments below.

II. STANDARD OF REVIEW

A. The Summary Judgment Standard

The parties acknowledge that summary judgment in a habeas

corpus proceeding is appropriate only if “‘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.’” Lavallee v .

Coplan,

4 0 , 143 (D.N.H. 2003) (quoting Fed. R.

Civ. P. 56(c)). A genuine issue is one “that properly can be

resolved only by a finder of fact because [it] may reasonably be

resolved in favor of either party.” Anderson v . Liberty Lobby,

13 Magistrate Judge Muirhead dismissed the remaining claims in a June 2 8 , 2004 Report and Recommendation (Doc. N o . 1 2 ) . This court approved the Report and Recommendation in a July 1 4 , 2004 Order (doc. n o . 1 7 ) .

-16- Inc.,

4 2 , 250 (1986). A material fact is one that

affects the outcome of the suit. See id. at 248.

B. The Antiterrorism and Effective Death Penalty Act Standard

Porter’s habeas corpus petition is governed by the

Antiterrorism and Effective Death Penalty Act (“AEDPA”),

(d)(1). The AEDPA states that a federal court may

grant habeas relief only if it finds that the state court

adjudication “resulted in a decision that was contrary t o , or

involved an unreasonable application o f , clearly established

Federal law.” See Horton v . Allen,

5 , 79-80 (1st Cir.

2004).

Under the “contrary to” prong, the petition may be granted

if the state court “arrives at a conclusion opposite to that

reached by [the United States 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.”

at 80 (quoting Williams v . Taylor,

6 2 ,

412-13 (2000)) (internal quotation marks omitted).

Under the “unreasonable application” prong, the petition may

be granted only if the state court “identifies the correct

-17- governing legal principle from [the Supreme] Court’s decisions

but unreasonably applies that principle to the facts of the

prisoner’s case.” Horton, 370 F.3d at 80 (quoting Williams, 529

U.S. at 413) (internal quotation marks omitted). “To be an

unreasonable application of governing law, the state court’s

determination must not only be incorrect but also be objectively

unreasonable.” Horton, 370 F.3d at 80 (citing Williams, 529 U.S>

at 410-11). “In other words, if the petition presents a close

call, it must be rejected, even if the state court was wrong.”

Id. (citing Sarourt Nom v . Reilly,

1 2 , 116 (1st Cir.

2003)). “If, however, the petition presents a federal claim that

was raised before the state court but was left unresolved, the

AEDPA’s strict standards do not apply” and the court will review

the claim de novo. Horton, 370 F.3d at 8 0 .

III. DISCUSSION

Porter’s three primary arguments are that: (1) the trial

court should have reviewed Rossignol’s M.O.P. evaluation in

camera and forced the state to produce i t ; (2) the trial court

denied Porter his Sixth Amendment right to cross-examine

-18- Rossignol regarding past allegations of sexual assault; and (3)

the prosecutor violated Porter’s right to due process by

improperly appealing to the passions and prejudices of the jury

during her closing argument. I evaluate each argument in turn

and then briefly address Porter’s remaining claims.

A. The M.O.P. Evaluation

In its July 1999 opinion, the New Hampshire Supreme Court

rejected Porter’s claim that the trial court erred in failing to

review Rossignol’s M.O.P. evaluation in camera. The court based

its ruling on Gagne, a prior case in which it had considered the

contours of a criminal defendant’s federal constitutional right

to have privileged documents reviewed in camera. 136 N.H. at

102. 14 Gagne, in turn, relied on Pennsylvania v . Ritchie, 480

14 The state claims that the federal aspects of Porter’s claims were first raised post-appeal. In Porter’s September 3 , 1996 pre-trial motion for discovery, however, Porter explicitly invoked the federal constitution, see App. to Notice of Appeal to the Supreme Court, Vol. II at 137-38. Further, he cited the New Hampshire Supreme Court’s ruling in Gagne, and argued that he was entitled to the material as a matter of “due process.” See Brief for the Def. at 2 2 . Because Gagne considered the federal as well as the state constitutional grounds for granting in camera review, I disagree with the state that Porter failed to properly argue the federal aspects of his claims until after his direct appeal.

-19- U.S. 39 (1987), for guidance on the question. Id. at 105.

According to the Gagne court, Ritchie, properly interpreted, held

that “in order to trigger an in camera review of confidential or

privileged records, the defendant must establish a reasonable

probability that the records contain information that is material

and relevant to his defense.” Id. (citing, inter alia, State v

Hutchinson,

(Me. 1991) (interpreting Ritchie

and holding that the court must find that records “may be

necessary for the determination of any issue before” the court);

State v . Howard,

(Conn. 1992) (holding that

defendant must show some “reasonable ground to believe” that

failure to produce records might impair his ability to impeach a

witness)). Given that proof of “relevance” is the minimum

threshold for evidentiary admissibility, see Fed. R. Evid. 4 0 2 ,

and proof of “materiality” is required to make out a due process

claim against the state on the theory that a criminal defendant

has been denied exculpatory evidence, Ritchie, 480 U.S. at 57, 15

15 Because I grant the state’s motion on relevancy grounds, I need not consider whether the evidence he sought would also be considered “material.” Given the overwhelming physical evidence of his guilt, however, I doubt whether Porter would be able to prove that it was. See Ritchie, 480 U.S. at 57 (stating that “[evidence] is material only if there is a reasonable probability

-20- this ruling is not an “objectively unreasonable” interpretation

of Supreme Court precedent. Horton, 370 F.3d at 80 (citing

Williams, 529 U.S. at 410-11).

The next question, then, is whether the New Hampshire

Supreme Court’s application of Gagne was “objectively

unreasonable.” The court first ruled that, to the degree Porter

argued that the M.O.P. evaluation contained general information

regarding “the victim’s emotional instability” and “alcoholism,”

he had failed to demonstrate how either quality had any bearing

on Rossignol’s “character for truthfulness.” This ruling is in

accordance with First Circuit precedent. In United States v .

Butt, the First Circuit held that evidence of mental illness or

instability may be excluded if the witness in question has not

“exhibited a pronounced disposition to lie or hallucinate, or

[has not] suffered from a severe illness, such as schizophrenia,

that dramatically impaired her ability to perceive and tell the

truth” about the events in question.

7 , 82-83 (1st

Cir. 1992). Porter failed to argue to the trial court that there

that, had the evidence been disclosed to the defense, the result of the proceeding would have been different”)(citation and internal quotation marks omitted).

-21- was a “reasonable probability” that the M.O.P. evaluation

contained any information suggesting that Rossignol suffered from

a mental impairment of this severity. I therefore conclude that

the supreme court’s ruling regarding the trial court’s refusal to

examine these materials in camera on these grounds was not

“objectively unreasonable.”

The court’s refusal to review the evaluation on the grounds

that it contained information regarding Rossignol’s allegation

that she had been raped by Calvin Dunn also was not “objectively

unreasonable.” The court based its ruling on (1) the fact that

Porter did not argue to the trial court that this allegation was

contained in the report, and (2) the fact that he failed to argue

that the alleged statement was “false and material.” The

reasonableness of the first basis for this conclusion is self-

evident. If Porter did not argue that the M.O.P. evaluation

contained the information he sought, that information cannot be

the basis for requiring in camera review. The same is true with

respect to the court’s second ground for denial. Unless there

were some argument that Rossignol’s claim that Dunn raped her was

false, there could be no basis for concluding that evidence

-22- concerning the allegation was relevant to Rossignol’s

credibility. The state’s motion for summary judgment with

respect to the court’s failure to review the M.O.P. evaluation in

camera is therefore granted and Porter’s motion is denied to the

extent it addresses this issue.16

B. Cross-examination on Prior Sexual Assault Allegations

Porter next argues that the trial court violated his Sixth

Amendment right to cross-examine Rossignol regarding past

allegations of sexual assault he claims she made against a

minister and a friend of her father. The state’s primary

contention is that Porter is not entitled to relief on this claim

in federal court because the New Hampshire Supreme Court disposed

of it on independent and adequate state law grounds. See Gunter

v Maloney,

4 , 78 (1st Cir. 2002) (citing Coleman v .

Thompson,

2 2 , 750 (1991)). I agree.

16 Because I rule that the supreme court did not err in ruling that the trial court should have reviewed Rossignol’s M.O.P. evaluation in camera, I need not rule on whether the court should have ordered the state to produce the evaluation.

-23- Basing its claim in fact, if not in name,17 on Superior Court

Rule 100-A, the trial court concluded that Porter could not

examine Rossignol regarding her alleged claim that she had been

sexually assaulted by a minister and her father’s friend. Rule

100-A requires a defendant to file a motion 45 days in advance

announcing his intention to question a witness in this manner,

see N.H. Super. C t . R. 100-A. The court ruled that Porter had

failed to comply with this requirement. Rather than object to

this ruling, however, Porter acceded, stating, “All right. I can

– all right, Your Honor.” It was on the basis of his failure to

object that the New Hampshire Supreme Court rejected Porter’s

attempted appeal on this ground. See Porter,

(holding that “[b]ecause the defendant did not object to the

ruling, we will not review it on appeal”).

It is a basic principle of habeas corpus law that “if a

state court decision rests on the adequate and independent state

17 The trial court apparently misstated the basis for its ruling, citing the State v . Ellsworth case rather than Rule 100- A . Because the state raised Rule 100-A as the basis for its motion, and because the court mentioned it in its colloquy with the state, this mistaken reference to Ellsworth does not affect the disposition of this issue.

-24- ground of procedural default, then federal habeas review is

unavailable absent a showing of cause and prejudice or a showing

that a miscarriage of justice will otherwise result.”

McCambridge v . Hall,

4 , 34 (1st Cir. 2002). This rule

“appl[ies] alike whether the default in question occurred at

trial, on appeal, or on state collateral attack.” Edwards v .

Carpenter,

(2000)(citation omitted).

In this case, Porter committed two procedural defaults. The

first occurred when Porter failed to satisfy Rule 100-A. This

was why the trial judge rejected Porter’s argument. The second

occurred when Porter failed to object to the trial court’s ruling

that he could not raise the past allegations of sexual assault

during cross-examination. This was the reason that the New

Hampshire Supreme Court affirmed the trial court’s ruling.

Porter offers no proof that either rule is irregularly or

inconsistently applied. Gunter,

(holding that a

state procedural ruling may bar habeas review, but only if it is

based on a rule that is “regularly and consistently applied”).

Nor has Porter attempted to establish either cause and prejudice

for the default or that enforcing the default will result in a

-25- miscarriage of justice. Thus, I cannot review the merits of

Porter’s federal claims with respect to this issue.

The

state’s motion for summary judgment regarding Porter’s Sixth

Amendment claim is therefore granted and Porter’s motion

asserting the same issue is denied.

C. Closing Argument

Porter next claims that the prosecutor violated his right to

procedural due process by improperly appealing to the passions

and prejudices of the jury during her closing argument. Porter

specifically complains that the prosecutor acted improperly by

vouching for her own witnesses, by demeaning Porter through

insults and epithets, and by negatively commenting on the manner

in which he conducted his defense. Though I agree that many of

the prosecutor’s comments were improper, I am not persuaded that

her misconduct entitles Porter to habeas corpus relief.

Improper argument violates a defendant’s due process rights

only if the argument “so infected the trial with unfairness as to

make the resulting conviction a denial of due process.”18 Donelly

18 Improper argument can also violate a defendant’s constitutional rights if it impermissibly burdens a specific constitutional guarantee such as the defendant’s Fifth Amendment right against self-incrimination, see Griffen v . California, 380

-26- v . DeChristoforo,

3 7 , 643 (1974); see also Amrault v .

Fair,

(1st Cir. 1992). The Supreme Court has

not further defined this general standard but those lower courts

that have been called upon to apply it have treated the standard

as a totality of the circumstances test that encompasses factors

such as the nature and frequency of the offending statements, the

context in which the statements were made, and the strength of

the evidence against the defendant. See, e.g., Abela v . Martin,

(6th Cir. 2004); Bentley v . Scully,

(2d Cir. 1994); see also United States v . Nelson-

Rodriguez,

2 , 38 (1st Cir. 2003) (challenge based on

U.S. 609, 615 (1965), or his Eighth Amendment right against cruel and unusual punishment, see Caldwell v . Mississippi,

(1985). C f . Portuondo v . Agard,

1 , 65 (2000) (rejecting claim that argument impermissibly burdened defendant’s Fifth and Sixth Amendment rights to be present during trial and confront his accusers). I have not considered whether Porter could maintain a claim of this type for two reasons. First, he has not attempted to present such a claim in the petition he filed in this court. Second, he would be barred from raising this type of claim in federal court in any event because he did not raise a comparable claim in state court. See, e.g., Picard v . Connor,

7 0 , 277 (1971). Thus, although at least one circuit court has held that a prosecutor violates a defendant’s confrontation clause rights by complaining during a closing argument that the defendant forced the victim to attend the trial and thereby relive the attack, see Burns v . Gannon,

9 2 , 896 (8th Cir. 2001), I examine Porter’s challenge to the argument only under the due process clause.

-27- supervisory power). I adopt a similar approach in resolving

Porter’s due process claim.19

Given the totality of the circumstances in which the

prosecutor gave her closing, I conclude that her misconduct was

severe. A cardinal rule of prosecutorial summation is that the

prosecutor may not appeal to the passions and prejudices of a

jury in the course of her argument. See Nelson-Rodriguez, 319

19 I review Porter’s due process claim de novo rather than under the deferential standards of review that govern most habeas corpus claims. The First Circuit has held that AEDPA’s deferential standards of review apply only to claims that are adjudicated on their merits. See Fortini v . Murphy,

9 , 47 (1st Cir. 2001). In this case, as respondent concedes, the New Hampshire Supreme Court failed to explain whether it was rejecting Porter’s challenge to the closing argument because it was meritless or because it was procedurally barred. See Porter,

. In such cases, it is improper to treat the court’s decision as a ruling on the merits. See DeBerry v . Portuondo,

7 , 67 (2d Cir. 2005) (decision that claim is “either unpreserved for appellate review . . . or [is] without merit” is not a decision on the merits). Although a superior court judge later rejected Porter’s habeas corpus petition raising the same issue on substantive grounds, she did so because she ruled that the prosecutor’s argument was appropriate under the circumstances. See Res’t.’s App. to Mot. for Summ. J. (Doc. N o . 2 7 ) , Ex. F at 1 . Even if I were to review this ruling deferentially, I would reject it because it is an unreasonable application of supreme court precedent regarding improper prosecutorial argument. Because neither the superior court nor the supreme court clearly ruled on the merits of the claim that the prosecutor’s arguments, although improper, did not violate Porter’s due process rights, I examine this issue de novo.

-28- F.3d at 39 (citing 5 W.R. LaFave et a l . , Criminal Procedure §

24.7(e), at 558 (2d. ed. 1984)); United States v . Martinez-

Medina,

, 119 (1st Cir. 2002) (stating that appeals

to “the jury’s emotions” are “plainly improper”)(citation

omitted). The prosecutor did so in this case in three

impermissible ways.

First, in the course of her argument, she relied on a

multiplicity of epithets and negative imagery, calling Porter,

among other things, “a pathological liar and a manipulator to

boot,” “desperate,” “inhumane,” and “crafty,” and at one point

going so far as to use Porter’s insulin-induced physical state to

conjure images of the satanic. This was plainly improper. Cf.

Martinez-Medina, 279 F.3d at 119 (concluding that “the

prosecutor’s characterization of the defendants as ‘hunting each

other like animals’” was “especially inflammatory and improper”).

Second, by repeatedly stating that Rossignol had told the

truth and that the state’s other witnesses had not lied, the

prosecutor put the “‘prestige of the government behind a witness

by making personal assurances about the witness’[s]

credibility.’” U.S. v . Cruz-Kuilan,

9 , 62 (1st Cir.

-29- 1996)(quoting U.S. v . Neal,

(1st Cir. 1994))

(holding that such practices are improper vouching); C f . United

States v . Auch,

(1st Cir. 1999)(similar);

United States v . Wihbey,

6 1 , 771-72 (1st Cir. 1996)

(similar). This was also improper.

Third, the prosecutor impermissibly encouraged the jury to

draw an adverse inference against Porter because of the way in

which he conducted his defense. She did this by directly

denigrating the manner in which Porter conducted his cross-

examination of Rossignol (at one point characterizing his

questioning as “protracted and often meaningless”), and by asking

the jury to associate Porter’s decision to do so with the crime

for which he stood accused (the prosecutor stated that Rossignol

had been “revictimized by the defendant in cross-examination for

days”). 20

20 It is difficult to disagree with the prosecutor’s suggestion that Porter’s cross-examination of Rossignol was excessive. The proper remedy for such misconduct, however, is to seek reasonable limitations on the cross-examination rather than to argue that a defendant should be found guilty because of the manner in which he conducted his defense. To be sure, a prosecutor is entitled to argue that a prosecution witness’s testimony is credible because she had no motive to subject herself to the rigors of trial by making false charges. The prosecutor crossed the line in this case when she suggested that

-30- Indeed, were the evidence against Porter not so strong, the

prosecutor’s conduct in this case could well have been grounds

for a retrial. Photographs taken of Rossignol’s body the day

after the attack revealed marks and bruises on her neck, on her

right ankle, on the upper part of her chest, on the inner part of

her thigh, and on her arms. This physical evidence, along with

the ripped clothing she provided to the officers during the

course of her physical examination, the earrings embedded in

Porter’s couch that officers recovered during their search of

Porter’s home, and the note Rossignol penned to her son in the

face of Porter’s repeated death threats, corroborates Rossignol’s

version of the events that occurred on November 2 7 , 1995. Thus,

a review of the evidence demonstrates that Porter is most

assuredly guilty.

In light of this evidence, I conclude that Porter has failed

to establish that the prosecutor’s comments violated his right to

procedural due process.21 See Darden v . Wainwright,

6 8 ,

Porter should be found guilty because he had “revictimized” and “tortured” the victim by subjecting her to a trial and forcing her to undergo cross-examination. 21 Even if Porter could establish that he was denied his right to due process, he would not be entitled to habeas relief.

-31- 182 (1986) (refusing to grant a new trial based on improper

argument in part because “the weight of the evidence against

petitioner was heavy,” and the “overwhelming . . . circumstantial

evidence . . . [suggested] guilt on all charges”) (quotation

omitted). The state’s motion with respect to this claim is

therefore granted and Porter’s motion is denied.

D. Porter’s Remaining Claims

1. Right of Access to the Courts

Porter next argues that his Fourteenth Amendment right of

access to the courts has been denied. The New Hampshire Superior

Court reached the merits of this issue in its August 1 1 , 2000

order. Resp’t’s. App. to Mot. for Summ. J. (Doc. N o . 2 7 ) , Ex. F

at 5-7. The AEDPA therefore requires that I uphold the state

court’s ruling unless it is either contrary to supreme court

precedent or an unreasonable application of such precedent.

Trial errors, such as improper prosecutorial argument, ordinarily will not entitle a habeas corpus petitioner to relief unless they “‘had substantial and injurious effect or influence in determining the jury’s verdict.’” Brecht v . Abrahamson,

(1993) (quoting Kotteakos v . U.S.,

5 0 , 776 (1946). The same evidence that leads me to conclude that the prosecutor’s misconduct did not violate Porter’s due process rights convincingly demonstrates that her improper arguments do not entitle Porter to habeas corpus relief under Brecht.

-32- Horton, 370 F.3d at 80 (citing

(d)(1)).

The superior court rejected Porter’s access to the courts

claim because it determined that he had failed to prove that he

had suffered actual injury. Resp’t’s. App. to Mot. for Summ. J.

(Doc. N o . 2 7 ) , Ex. F. at 6-7. According to the court, that “the

petitioner . . . had counsel throughout the course of his case,

both as stand-by counsel at trial and on appeal, and cited law in

many of his pleadings to the Court” demonstrated that he had

suffered no such injury.

at 7 . Porter has failed to

challenge the court’s ruling on this point and I will not

speculate as to how, in light of this finding, Porter could

credibly claim that he was denied his right of access to the

courts. See Bolvin v . Black,

6 , 42 (1st Cir. 2000)

(citing Lewis v . Casey for the proposition that the “right of

access to the courts is narrow in scope,”

(1996), and for the proposition that a prisoner’s constitutional

rights are satisfied as long as the prisoner receives “the

minimal help necessary to present legal claims,”

)(internal quotation marks omitted). The state’s motion for

summary judgment with respect to Porter’s right of access claim

-33- is therefore granted and Porter’s motion addressing the same

issue is denied.

2. Double Jeopardy and Improper Jury Instruction Claims

Porter’s final claims are that his Fifth Amendment double

jeopardy rights were violated, and that the trial judge

improperly instructed the jury as to the kidnaping charges.

Porter has not, however, addressed the state’s motion for summary

judgment with respect to the merits of these claims anywhere in

his briefing.

As the First Circuit has stated, it is not the job of “the

court to do counsel’s work.” United States v . Zannino,

, 17 (1st Cir. 1990). Issues “unaccompanied by some effort at

developed argumentation . . . are [thus] deemed waived.”

(citations omitted); see also, United States v . Candelaria-Silva,

9 , 38 (1st Cir. 1999) (stating that the failure to

develop an argument or to cite any supporting authority is

grounds for dismissal). Because Porter has made no effort at

this stage of litigation to develop arguments with respect to

these claims, I deem them waived. The state’s motion for summary

judgment as to these issues is therefore granted and Porter’s

-34- motion addressing the same issue is denied.

III. CONCLUSION

For the reasons set forth above, the state’s motions for

summary judgment (Doc. Nos. 27 and 34) are granted and Porter’s

motion is denied (Doc. N o . 3 3 ) . The clerk is instructed to enter

judgment accordingly.

SO ORDERED.

Paul Barbadoro United States District Judge

September 2 9 , 2005

cc: Nicholas P. Cort, Esq. Christopher M . Johnson, Esq.

-35-