Hammell v . Warden, NHSP 06-CV-176-SM 04/09/07 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Michael L . Hammell, Plaintiff

v. Civil N o . 06-cv-176-SM Opinion N o .

New Hampshire State Prison, Lakes Region Facility, Warden, Defendant

O R D E R

This petition for habeas corpus relief appears to be moot.

A jury convicted petitioner in the New Hampshire Superior Court

of operating a motor vehicle after having been certified as an

habitual offender, in violation of N.H. Rev. Stat. Ann. ch.

262:23. He filed a direct appeal to the New Hampshire Supreme

Court and, while that appeal was pending, also filed a petition

for collateral relief in the Superior Court. That petition was

dismissed and an appeal declined, again, before the direct appeal

was resolved. While his direct appeal was still pending in the

New Hampshire Supreme Court petitioner filed this federal habeas

case.

Petitioner’s direct appeal of his conviction was just

resolved. State v . Hammell, ___ N.H. ___, N o . 2005-528 (March 6, 2007). Petitioner’s conviction and sentence were vacated and his

case remanded to the Superior Court for possible retrial.

Accordingly, he has obtained from the New Hampshire Supreme Court

all the relief he could have obtained had he been successful in

this federal case — i.e., vacation of his conviction and a new

trial.

Petitioner sought relief in this court on grounds that: 1 )

he was subjected to a search and seizure in violation of his

Fourth Amendment rights 1 ; 2 ) his defense counsel provided

ineffective representation which led to his conviction; 3 ) the

state withheld material exculpatory evidence; 4 ) police officers

obtained incriminating statements from him prior to advising him

of his Miranda rights, in violation of the Fifth Amendment, and,

5 ) he was denied his right to a speedy trial.2 The reversal of

his conviction by the New Hampshire Supreme Court removes any

possible prejudice, or continuing “case or controversy,” because

1 Where the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner cannot obtain federal habeas relief on grounds that evidence obtained through an unconstitutional search and seizure was introduced at his trial. Stone v . Powell,

(1976). Accordingly, that claim was dismissed at the recommendation of the Magistrate Judge. 2 The speedy trial claim was unexhausted and petitioner withdrew it by motion (document n o . 1 8 ) .

2 it provides petitioner with a full opportunity to obtain

effective representation, gain access to any allegedly

exculpatory evidence, and to seek to suppress any statements or

derivative evidence obtained in violation of his Fifth Amendment

rights, if the State proceeds with a retrial. See Spencer v.

Kenna,

(1998); Jackson v. Coalter,

(1st Cir. 2003). He is now a pretrial detainee, awaiting a new

trial that may or may not result in conviction, and one in which

he will be afforded the opportunity to vindicate his federal

constitutional rights.

Conclusion

The petition is dismissed, without prejudice, as moot, in

light of the New Hampshire Supreme Court’s decision vacating

petitioner’s conviction and sentence, which is the subject of

this federal habeas petition.

SO ORDERED.

Steven J. McAuliffe /Chief Judge

April 9, 2007

cc: Michael L. Hammell, pro se Stephen D. Fuller, Esq. John Vinson, NH DOC

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