Grimard v . Warden 03-CV-392-SM 01/31/06 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Maurice Grimard, Petitioner

v. Civil N o . 03-cv-392-SM Opinion N o .

Bruce W . Catell, Warden, New Hampshire State Prison, Respondent

O R D E R

Maurice Grimard, currently incarcerated in the New Hampshire

State Prison and appearing pro s e , petitions for a writ of habeas

corpus. 28 U.S.C. 2254. Before the court is respondent’s motion

for summary judgment. Petitioner objects. For the reasons

given, respondent’s motion for summary judgment is granted.

The Legal Standard

Passage of the Anti-Terrorism and Effective Death Penalty

Act of 1996 (“AEDPA”),

(d), has significantly

limited the power of 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).

There is a distinction between decisions that are “contrary

to” clearly established federal law and those involving an

“unreasonable application” of federal law:

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

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

2 Background

After a four-day trial in the New Hampshire Superior Court,

Maurice Grimard was convicted on three counts of selling cocaine,

one count of possessing cocaine with intent to sell, and one

count of conspiracy to sell cocaine. For the possession and

conspiracy convictions, petitioner was sentenced to two terms of

not more than 15 years, nor less than 7 1/2 years, to be served

concurrently. For the three convictions for selling cocaine, he

was sentenced to three terms of not more than 20 years, nor less

than 10 years, to be served concurrently with one another but

consecutively to the sentences for possession and conspiracy.

The three cocaine sales took place on May 1 9 , June 2 , and

June 9, 1998. Grimard made all three sales to an undercover

police officer, Detective Ronald Dickerson of the New Hampshire

Drug Task Force. Dickerson was introduced to Grimard by a

confidential informant, Paul Vachon, on May 1 3 , 1998. After May

1 3 , Dickerson had only one contact with Vachon (a telephone

call), and Grimard was not charged with any conduct involving

Vachon. Grimard’s co-conspirator was Alfredo Vasquez (or some

3 other unknown individual). Neither the State nor petitioner

called Vachon as a witness at petitioner’s trial.

According to documents from the Drug Task Force’s

investigative file on Vachon,1 he was under investigation as

early as November 1997. He remained under investigation until he

was arrested, on May 1 , 1998, by Agent Mike Connolly,

Investigator Kevin McCarthy, and Det. John Boles, based upon

complaints sworn out by Det. Dickerson. Vachon was charged with

five counts of selling cocaine (on October 1 , 1 4 , and 3 0 , 1997,

and March 4 and April 2 8 , 1998) and one count of possessing

cocaine with intent to sell (on May 1 , 1998). In a negotiated

disposition, Vachon pled guilty to one count of selling cocaine

and one count of possessing cocaine with intent to sell. On

February 2 3 , 2000, he was given a deferred sentence of five to

twenty years on the former conviction and a consecutive suspended

sentence of three and one-half to seven years on the later

conviction.

1 The investigative file was not produced during the state prosecution. After Grimard was convicted, he obtained the Vachon file under the New Hampshire Right-to-Know law.

4 In his petition, Grimard asserts that he is being

incarcerated unconstitutionally because his conviction resulted

from:

(1) the prosecution’s failure to disclose exculpatory evidence, in violation of his right to due process, under Brady v . Maryland,

(1963);

(2) the prosecution’s introduction of perjured testimony, in violation of his right to due process, under Albright v . Oliver,

(1994);

(3) the prosecution’s failure to disclose an agreement between the State and a confidential informant, in violation of his right to due process, under Giglio v . United States,

(1972);

(4) prosecutorial misconduct, in the form of misrepresenting and/or failing to disclose an agreement between the State and a confidential informant, in violation of his right to due process, under Darden v . Wainwright,

(1986);

(5) the erroneous dismissal of his state habeas corpus petition based upon a ruling that he waived ineffective assistance of counsel claims arising from his trial attorney’s failure to raise a double jeopardy objection;

(6) the erroneous dismissal of his state habeas corpus petition based upon a ruling that he waived ineffective assistance of counsel claims arising from his trial attorney’s failure to object to the effective amendment of the indictment during jury instructions;

5 (7) the erroneous dismissal of his state habeas corpus petition based upon a ruling that he waived his right to object to a disproportionate and illegal sentence, in violation of his Eighth Amendment rights, under Harmelin v . Michigan,

(1991); and

(8) the ineffective assistance of his trial counsel.

Discussion

A . Ground One

In his first ground for relief, petitioner asserts that his

conviction was obtained as a result of the State’s failure to

produce exculpatory evidence during discovery, that i s , the Drug

Task Force’s investigative file on Paul Vachon. According to

petitioner, information from that file would have allowed him to

impeach the State’s key witness, Det. Dickerson, and more

effectively mount an entrapment defense. Respondent moves for

summary judgment on grounds that the evidence is not exculpatory.

Petitioner first raised this issue in a pro se Motion to

Vacate Convictions and Bar Reprosecution which was denied in a

margin order dated July 1 9 , 2001. In an order following

reargument of that motion, by counsel, Judge Lynn reaffirmed his

denial of the motion and explained his reasoning:

6 The notion that anything contained in the reports related to the investigation of Paul Vachon could in any way be viewed as exculpatory of the defendant is chimerical. As the State aptly points out, assuming the “source” for drugs Vachon was talking about in his pre-May 1 2 , 1998 meetings with the police (when Vachon was a target, not someone working with the police) was in fact the defendant rather than Vachon’s other source, the substance of those discussions could not possibly be regarded as exculpatory or in any way lending the slightest credence to an entrapment defense. The fact that the defendant, as a conceded (under this theory) source for drugs “did not want to meet anyone new” or was “feeling warm” (i.e., concerned that law enforcement might be on to him) is inculpatory, not exculpatory, since it shows that the defendant had a predisposition to sell drugs to others and was only concerned that any new buyer he might meet would turn out to be a police officer.

By order dated December 1 8 , 2001, the New Hampshire Supreme Court

summarily affirmed Judge Lynn’s denial of petitioner’s motion to

vacate.

Under Brady, “the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where

the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.”

3 , 87 (1963). “[T]he materiality standard for Brady

claims is met when ‘the favorable evidence could reasonably be

7 taken to put the whole case in such a different light as to

undermine confidence in the verdict.’” Banks v . Dretke,

(2004) (quoting Kyles v . Whitley,

(1995)). Confidence in the verdict is undermined by a showing

that with the suppressed evidence, there is a “reasonable

probability of a different result.” Banks,

.

The evidence petitioner characterizes as exculpatory Brady

material consists, generically, of the following: police reports

written by Det. Dickerson; approvals for one-party intercepts

granted by Brian Graf and Jane Young of the New Hampshire

Attorney General’s office; Drug Enforcement Agency reports

written by Special Agent Michael Connolly; reports from a PEN

register placed on Vachon’s telephone; and miscellaneous

surveillance reports. Substantively, those records document:

(1) Det. Dickerson’s March 4 , April 1 , and April 2 , 1998,

requests to tape record telephone conversations between himself

and Vachon; (2) telephone conversations between Det. Dickerson

and Vachon on March 3 and 4 , April 1 , 7 , and 9, 1998; (3) Det.

Dickerson’s purchases of cocaine from Vachon on March 4 and April

2 9 , 1998; (4) Det. Dickerson’s unsuccessful attempt to have

8 Vachon set up a meeting with an unnamed supplier on April 2 8 ,

1998; (5) Michael Connolly’s observation of an April 2 9 , 1998,

meeting between Vachon and a person that Special Agent Yerrington

identified as Grimard; (6) Det. Ganley’s observation of the April

29 meeting; (7) Investigator Kevin McCarthy’s April 3 0 , 1998,

discovery that a telephone number on Vachon’s PEN register

belonged to Grimard; (8) Vachon’s May 1 , 1998, arrest, after

which Vachon identified Grimard as his source of cocaine; (9) the

six criminal complaints against Vachon; and (10) the ultimate

disposition of the charges against Vachon.

In petitioner’s view, that evidence is exculpatory because

it supports his entrapment defense and, had it been disclosed

prior to trial, would have assisted him and his counsel in

devising trial strategy and deciding whether or not to call

Vachon as a witness. That argument was resolved against

petitioner on the merits in the state court. Accordingly, the

deferential AEDPA standard of review applies. Judge Lynn’s

determination that the evidence was not exculpatory is neither

contrary t o , nor an unreasonable application o f , Supreme Court

9 precedent. Therefore, respondent is entitled to judgment as a

matter of law on Ground One.

B . Ground Two

In his second ground for relief, petitioner asserts that his

conviction was obtained as a result of the State’s solicitation

o f , and failure to correct, perjured testimony from Detective

Dickerson. In particular, petitioner claims that Det. Dickerson

perjured himself by testifying that the State first learned about

him on May 1 2 , 1998. That testimony was perjury, in petitioner’s

view, because the discovery material allegedly suppressed by the

State (i.e., the Vachon file) demonstrates that Vachon had been

cooperating with law enforcement officers since December 1997,

and that petitioner had been approached by Vachon several times

prior to May 1 2 , at Det. Dickerson’s behest, and had declined to

sell Vachon any drugs. Respondent moves for summary judgment on

grounds that Det. Dickerson did not commit perjury and that, even

if he was incorrect about when he first learned petitioner’s

name, any such mistake was entirely inconsequential.

10 Petitioner first raised the issue identified in Ground Two

in his pro se motion to vacate. When that motion was reargued,

counsel did not pursue the perjury issue and, as a result, Judge

Lynn did not address it in his order of September 2 8 , 2001.

Petitioner also did not raise it in his notice of appeal to the

New Hampshire Supreme Court. Petitioner raised the argument

again, in a May 1 5 , 2004, petition for a writ of habeas corpus,

his second such petition in the state courts. That petition was

denied in an order dated July 9, 2004, in which Judge Hicks

found, as a factual matter, that “the first time the petitioner’s

name came to the attention of law enforcement agents was at the

debriefing meeting subsequent to M r . Vachon’s arrest in May,

1998.” Judge Hicks further found “no evidence of perjury by

Detective Dickerson.” By order dated September 1 5 , 2004, the New

Hampshire Supreme Court summarily affirmed Judge Hicks’s denial

of Grimard’s second state habeas petition.

“[I]t is established that a conviction obtained through use

of false evidence, known to be such by representatives of the

State, must fall under the Fourteenth Amendment.” Napue v .

Illinois,

6 4 , 269 (1959) (citations omitted). “The

11 same result obtains when the State, although not soliciting false

evidence, allows it to go uncorrected when it appears.”

(citations omitted). Here, however, Judge Hicks determined, as a

factual matter, that Det. Dickerson did not perjure himself, and

that determination was not unreasonable.

At trial, Det. Dickerson testified, on direct examination,

in the following way:

Q How did that investigation [into Maurice Grimard] come about, Detective Dickerson?

A Through an informant.

Q And who was that informant?

A Paul Vachon.

Q How did you meet the defendant?

A Paul Vachon introduced me to him.

Q Did you have contact with the defendant on May 18th of 1998?

A Yes, I did.

Q What was the nature of that contact?

A A phone conversation.

Q How did that come about?

A I paged the defendant.

12 Q What was your purpose in paging the defendant?

A I was going to order up two ounces of cocaine.

Q When we talk about May 18th, if we use May 18th as the starting point, after May 18th was Paul Vachon ever with you when you were making contact with the defendant?

A N o , at that point in the investigation he was out of i t .

(Trial Transcript, Day 1 (hereinafter “Tr. I”) at 90-91.) Under

cross-examination, Det. Dickerson offered the following testimony

regarding his involvement with and knowledge of Grimard:

Q Yet actually your personal involvement in this case really commenced, insofar as it involved Mr. Grimard, on May 12th, right?

A That is correct. That’s correct.

(Tr. II at 25.) And on the same topic, Det. Dickerson testified

on redirect examination:

Q We had some discussion on your cross about your – the first time you heard the defendant’s name. What date was that?

A The first time I heard his name?

Q Yes.

A May 12th.

13 (Tr. II at 180.)

The earliest date on which petitioner’s name appears in the

Vachon file is April 2 9 , 1998. In reports bearing that date,

Special Agent Connolly and Det. Ganley stated that Special Agent

Yerrington identified a person meeting with Vachon as Grimard.

In a report dated April 3 0 , Investigator McCarthy stated that

when he called a particular telephone number from Vachon’s PEN

register, a person on the other end answered “This is Mo.” In a

report dated May 1 , 1998, Det. John Boles indicated that Vachon,

after his arrest, identified Grimard as his source for cocaine.

And at the hearing on petitioner’s second state habeas petition,

Det. Boles testified that Det. Dickerson was not present at

Vachon’s post-arrest debriefing. Finally, petitioner has

produced no police reports written by Det. Dickerson before May

12 that contain petitioner’s name.

Based upon the established record, it was hardly

unreasonable for Judge Hicks to determine, as a factual matter,

that Det. Dickerson did not commit perjury. While the Vachon

file suggests that some members of the Drug Task Force knew

14 petitioner’s name as early as April 2 9 , there is no evidence to

suggest that Det. Dickerson knew petitioner’s name before May 1 2 .

And, importantly, Dickerson never testified about what the Task

Force knew collectively; he testified based upon his own personal

knowledge. Because Judge Hicks did not unreasonably determine

that Det. Dickerson did not testify untruthfully, respondent is

entitled to judgment as a matter of law on Ground Two.

C . Ground Three

In his third ground for relief, petitioner asserts that his

conviction was obtained as a result of the State’s false

representation, during pre-trial hearings, that Paul Vachon had

not been offered a deal by the State. Petitioner’s claim rests

upon Vachon’s February 2000 sentencing as well as the State’s

decision to nol pros four charges of selling cocaine. Vachon was

not sentenced to imprisonment. Petitioner argues that had he

known of the alleged deal with Vachon, he would have called

Vachon as a witness to support his entrapment defense.

Respondent moves for summary judgment on grounds that

petitioner has produced no evidence that there was a deal with

15 Vachon prior to petitioner’s trial and that, even if there was,

disclosure of it would not have resulted in a different outcome

at trial because, in contrast to the factual situation in Giglio

v . United States,

(1972), Vachon was not a witness.

Petitioner first raised the issue identified in Ground Three

in his pro se motion to vacate. In an order following reargument

of that motion, by counsel, Judge Lynn reaffirmed his denial of

the motion and explained his reasoning:

In addition, with respect to the alleged “deal” between the State and Vachon, even if it were true that there was such a “deal” which the State failed to disclose, the defendant fails to articulate how such [a] deal would have been relevant to any issue other than Vachon’s credibility. And since Vachon did not testify at the trial, his credibility was not at issue.

By order dated December 1 8 , 2001, the New Hampshire Supreme Court

summarily affirmed the denial of petitioner’s motion to vacate.

In Giglio, the Supreme Court held that a criminal defendant

was entitled to a new trial when the government “failed to

disclose an alleged promise made to its key witness that he would

not be prosecuted if he testified for the Government,”

at

16 151, and “the Government’s case depended almost entirely on [the

witness’s] testimony,”

.

Petitioner presented the state court with no evidence of a

Vachon deal; he offered only his own surmise that such a deal

must have been in place, given the sentence that Vachon received.

But the dispositive point is that identified by Judge Lynn -

Vachon did not testify, so Giglio doesn’t apply. Judge Lynn’s

ruling was neither contrary to nor an unreasonable application of

Giglio. Accordingly, respondent is entitled to judgment as a

matter of law on Ground Three.

D. Ground Four

In his fourth ground for relief, petitioner asserts that his

conviction was obtained as a result of prosecutorial misconduct,

in the form of suppressing discovery material, suborning (and

failing to correct) perjury, and misrepresenting the deal the

State gave Vachon. Ground Four i s , in form and substance,

derivative of the first three asserted grounds. Thus, respondent

is entitled to judgment as a matter of law on Ground Four.

17 E . Ground Five, Six, and Seven

In his fifth, sixth, and seventh grounds for relief,

petitioner merely asserts that New Hampshire Superior Court Judge

(Mohl, J.) got it wrong when he determined that, under state law,

petitioner’s ineffective assistance and unlawful sentence claims

had been procedurally defaulted. However,

[o]rdinarily a federal court may not issue a writ [of habeas corpus] “based on a perceived error of state law,” although there may be an exception “if an error of state law could be sufficiently egregious to amount to a denial of equal protection or of due process of law.”

Brown v . Maloney,

6 , 44 (1st Cir. 2001) (quoting Pulley

v . Harris,

7 , 41 (1984); citing Barclay v . Florida,

(1983) (plurality opinion) (“[M]ere errors of

state law are not the concern of this Court unless they rise for

some other reason to the level of a denial of rights protected by

the United States Constitution.”)). Here, petitioner does not

assert that Judge Mohl’s allegedly erroneous application of the

state’s procedural default rule, see Avery v . Cunningham,

(1988), denied him equal protection or due process.

Thus, he has failed to raise claims that are cognizable in the

18 context of a federal habeas petition. Accordingly, respondent is

entitled to summary judgment on grounds five, six, and seven.

F. Ground Eight

In his eighth ground for relief, petitioner asserts that his

conviction was obtained as a result of the ineffective assistance

of counsel. Specifically, he contends that his counsel was

prevented from performing effectively by the misconduct of the

prosecutor, and also performed ineffectively by failing to raise

the issue of double jeopardy and by failing to object when the

trial judge constructively amended the indictment against him.

In his first state habeas petition, petitioner contended

that he had received ineffective assistance of counsel because

his trial attorney failed to object to the jury instructions on

two grounds: double jeopardy and impermissible amendment of the

indictment. Petitioner did not raise the issue of ineffective

assistance in either his direct appeal or his post-appeal motion

to vacate the conviction. Similarly, he raised no claim, in

either proceeding, based upon double jeopardy or impermissible

amendment of the indictment.

19 As noted earlier Judge Mohl, relying on Avery v . Cunningham,

3 8 , 143 (1988) (“New Hampshire has adopted the common

law rule that habeas corpus is not a substitute for an appeal.”)

(citation omitted), denied relief based upon petitioner’s failure

to raise the issues identified in his habeas petition in either

his direct appeal or his motion to vacate his convictions. It is

not clear from Judge Mohl’s order whether the procedural bar was

imposed as a result of Grimard’s failure to raise claims

concerning double jeopardy and amendment of the indictment, or

his failure to raise ineffective assistance claims. Because

Grimard framed his state habeas claim in terms of ineffective

assistance it is likely that Judge Mohl applied the state’s

procedural default rules to the claims as raised - that i s , to

the ineffective assistance of counsel claims. Petitioner

appealed the denial of his habeas petition, and the New Hampshire

Supreme Court declined the appeal in an order dated August 1 ,

2003.

A state court’s determination that federal claims have been

procedurally defaulted constitutes an “independent and adequate

20 state ground” for dismissal that ordinarily bars federal review,

absent a showing of “cause” for the default and prejudice:

Generally, habeas review is precluded when a state court reaches its decision on an independent and adequate state law ground. See Coleman v . Thompson,

2 2 , 729 (1991). A state court’s decision to find a forfeiture . . . is an independent and adequate ground for decision so long as the state court consistently applies its [forfeiture] rule and has not waived it in the particular case by basing the decision on some other ground. See Burks v . Dubois,

(1st Cir. 1995). . . .

Horton v . Allen,

5 , 80-81 (1st Cir. 2004) (parallel

citations omitted).

Here, there is a problem with the state’s procedural default

finding. New Hampshire does not consistently apply the Avery

rule to ineffective assistance of counsel claims. See Merritt v .

Warden, N o . Civ. 03-311-JD,

, at *3 (D.N.H. Mar.

1 1 , 2004) (citing Humphrey v . Cunningham,

2 7 , 732-33

(1990); Avery,

3 8 , 144-45; State v . Riendeau, Nos. 98-

S-329 and 98-S-1316,

, at 4 n.4 (N.H. Super. C t .

Nov. 1 4 , 2001)). For example, in Humphrey, decided two years

after Avery, the New Hampshire Supreme Court rejected the State’s

21 argument that a habeas petitioner had procedurally defaulted his

ineffective assistance claim by failing to raise it on appeal.

Humphrey,

. Because New Hampshire does not

consistently apply the Avery rule to ineffective assistance

claims, Judge Mohl’s procedural default ruling does not, for

federal habeas purposes, constitute an independent and adequate

state law ground warranting dismissal of petitioner’s claims.

Consequently, petitioner is entitled to raise his federal

ineffective assistance claims here.

“A criminal defendant claiming a Sixth Amendment ineffective

assistance violation must establish that (1) ‘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.’” Smiley v . Maloney,

7 , 20

(1st Cir. 2005) (quoting Strickland v . Washington,

6 8 ,

694 (1984); citing Mello v . DiPaulo,

3 7 , 142 (1st Cir.

2002)).

22 Counsel’s failure to raise a particular issue constitutes

ineffective assistance only when the issue “was so obvious and

promising that no competent lawyer could have failed to pursue

it.” Cirilo-Munoz v . United States,

2 7 , 530 (1st Cir.

2005) (quoting Arroyo v . United States,

4 , 55 (1st Cir.

1999)). In assessing objective reasonableness, the standard of

review is highly deferential. A court “must indulge a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance; that i s , the [petitioner]

must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.”

Strickland, 466 U.S. at 689. Thus, to prevail on his ineffective

assistance claims, petitioner must establish that the alleged

errors by counsel were “so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment.” Smullen v . United States,

0 , 23 (1st

Cir. 1996) (quoting Strickland, 466 U.S. at 6 8 7 ) . Petitioner’s

trial counsel’s performance was not objectively unreasonable.

23 1 . Double Jeopardy

Petitioner first claims that his trial counsel provided

ineffective assistance by failing to object to the jury

instructions on double jeopardy grounds. Specifically,

petitioner argues that each of his convictions for selling

cocaine constitutes a successive punishment for the same conduct

that supported his conspiracy conviction. In other words, he

argues that sale of cocaine is a lesser-included offense of

conspiracy to sell cocaine, and that his attorney provided

ineffective assistance by failing to raise that issue at trial.

Petitioner is wrong. Counsel was not required to present

incorrect legal argument. Conspiracy to commit a substantive

offense and commission of the substantive offense itself are two

distinct crimes:

[I]t has long been established that “conspiracy to commit a crime is not the same offense as the substantive crime for double jeopardy purposes,” [United States v.] Lanoue, 137 F.3d [656,] 662 [(1st Cir. 1998)], because “the agreement to do the act is distinct from the [completed] act itself,” United States v . Felix,

7 8 , 390-91 (1992) (internal quotation marks omitted) (adhering to line of cases holding that separate prosecutions for conspiracy and for underlying substantive offenses do not violate the Double Jeopardy Clause).

24 United States v . Fornia-Castillo,

2 , 69 (1st Cir. 2005)

(parallel citations omitted). Petitioner’s double jeopardy claim

is without merit, therefore his inadequate assistance claim is

without merit to the extent the latter depends on the former.

Respondent is entitled to judgment as a matter of law on the

portion of petitioner’s ineffective assistance claim related to

the double jeopardy issue.

2 . Constructive Amendment

Petitioner also claims that his trial counsel provided

ineffective assistance by failing to object to the state court’s

alleged constructive amendment of the conspiracy indictment while

instructing the jury. Petitioner argues that the trial court

told the jury that the overt act element of the conspiracy charge

could be met by proof that petitioner had committed any of the

acts charged in the indictments against him, rather than any of

the overt acts alleged in the conspiracy indictment. This

matters, according to petitioner, because the conspiracy

indictment listed, as overt acts, only two of the three drug

sales with which he was charged by separate indictment. In his

view, the trial judge impermissibly amended the conspiracy

25 indictment by adding an uncharged overt act to i t , namely the May

1 9 , 1998, cocaine sale for which he was indicted, but that was

not included as an overt act in the conspiracy indictment. He

says his trial was unconstitutionally unfair because he was not

put on notice that in order to defend himself against the

conspiracy charge, he had to defend himself against allegations

concerning the May 19 sale.

Respondent moves for summary judgment on grounds that:

(1) the alleged amendment that petitioner identifies, in the

trial transcript, was the result of either a misstatement by the

judge or a transcription/typographic error by the stenographer;

(2) any erroneous impression that might have been conveyed by the

allegedly improper instruction was corrected by a subsequent

accurate statement delivered orally by the judge, and by the

written instructions, which were provided to the jury and which

do not include the alleged error; and (3) any error was

ultimately harmless.

According to the trial transcript, Judge Lynn instructed the

jury, regarding the third element of the conspiracy charge, that

26 the State was obligated to prove “that at some time during the

existence or life of the conspiracy one of its members performed

one of the overt acts alleged in the indictments for the purpose

of furthering or advancing the objectives of the conspiracy.”

(Tr. IV at 75.) In the written instructions, which were provided

to the jury, the word “indictment” was used rather than the word

“indictments.” When offering further oral instruction on the

overt act element, Judge Lynn said:

In order to sustain its burden of proof, the State must also prove beyond a reasonable doubt that during the life of the conspiracy one of the members of the conspiracy knowingly performed at least one of the overt acts alleged in the indictment and that this overt act was performed for the purpose of advancing the goals of the conspiracy.

(Tr. at 78.)

I f , in fact, Judge Lynn did misread his instruction on the

third element of conspiracy, substituting “indictments” for

“indictment,” petitioner’s trial counsel did not provide

constitutionally deficient (that i s , objectively unreasonable)

assistance by failing to object. Judge Lynn’s slip of the tongue

– if any – was innocuous. Moreover, by the time petitioner’s

27 counsel could have made an objection, the error had been

corrected orally, by Judge Lynn’s subsequent use of the term

“indictment” rather than “indictments,” and, as petitioner’s

counsel well knew, the jury was to be provided with a written

copy of the jury instructions which used the singular throughout.

Thus, it would have been perfectly reasonable for petitioner’s

counsel to determine that an objection would serve no useful or

practical purpose since a correct statement and provision of the

written instructions were already in place. Because petitioner’s

failure to object to Judge Lynn’s putative misstatement was not

objectively unreasonable – the issue was hardly a “promising

one.” Respondent is entitled to judgment as a matter of law on

the portion of petitioner’s ineffective assistance claim related

to the issue of constructive amendment of the indictment.

Moreover, even if trial counsel’s failure to object might be

deemed objectively unreasonable, petitioner’s claim would still

fail on the second prong of the Strickland test. There is little

chance, much less a reasonable probability, that the outcome of

the trial would have been different absent the erroneous use of

the plural “indictments” rather than the singular “indictment”

28 when the judge instructed on the conspiracy indictment, under

these circumstances. Even if the jurors had treated the May 19

sale as an overt act for purposes of the conspiracy charge, they

also found petitioner guilty of two other cocaine sales and of

possessing cocaine with intent to sell, and all three of those

acts were listed as overt acts in the conspiracy indictment. So,

the jury unquestionably found multiple qualifying overt acts,

beyond a reasonable doubt, sufficient to support the conspiracy

conviction. Thus, even without the May 19 sale, the jury found,

beyond a reasonable doubt, that petitioner had committed three of

the overt acts listed in the conspiracy indictment.

Conclusion

For the reasons given, respondent’s motion for summary

judgment (document n o . 26) is granted. The clerk of the court

shall enter judgment in accordance with this order and close the

case.

29 SO ORDERED.

Steven J. McAuliffe Chief Judge

January 3 1 , 2006

cc: Maurice Grimard, pro se Nicholas P. Cort, Esq.

30