Pandolfi v. Wall 05-CV-165-SM 08/06/08 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

William J. Pandolfi, Plaintiff

v. Civil No. 05-CV-165-SM Opinion No.

Ashbelt T. Wall, Director of the RI Adult Correctional Facility, Defendant

O R D E R

In March of 1998, after his first trial resulted in a hung

jury, William Pandolfi was convicted of one count of aggravated

felonious sexual assault and two misdemeanor counts of sexual

assault upon a 14 year girl. The charges arose out of an

incident nearly ten years earlier, during which Pandolfi

restrained his victim, threatened (and cut) her with a razor

blade, gagged her by placing duct tape over her mouth, slapped

her repeatedly in the face, and raped her. On the felony count,

Pandolfi was sentenced to a term of 7^ to 15 years in the New

Hampshire State Prison. On the misdemeanor counts, he was

sentenced to terms of 12 months imprisonment, consecutive to each

other and the felony sentence. The sentencing court also

recommended that he complete drug and alcohol treatment, anger

management counseling, and the state prison's sexual offender

program. Pandolfi is currently incarcerated at the Rhode Island Adult

Correctional Institution, in Cranston, Rhode Island. He brings

this habeas corpus action challenging his criminal convictions as

well as his sentences. The State objects.

Standard of Review

Since passage of the Anti-Terrorism and Effective Death

Penalty Act of 1996 ("AEDPA"),

(d), the power to

grant federal habeas relief to a state prisoner with respect to

claims adjudicated on the merits in state court has been

substantially limited. A federal court may not disturb a state

conviction unless the state court's 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). Alternatively, habeas

relief may be granted if the state court's resolution of the

issues before it "resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States."

(d)(1). See also Williams v. Tavlor,

(2000) .

2 But, when a state's highest court has not addressed the

substance of the petitioner's claims on the merits, this court

considers those claims de novo. See, e.g.. Gruninq v. Dipaolo,

(1st Cir. 2002) (holding that the deferential

standard of review prescribed by section 2254(d) does not apply

to a state inmate's habeas petition when the state appellate

court failed to address the petitioner's constitutional claim);

Fortini v. Murphy.

(1st Cir. 2001) ("AEDPA

imposes a requirement of deference to state court decisions, but

we can hardly defer to the state court on an issue that the state

court did not address.").

With those principles in mind, the court turns to Pandolfi's

petition.

Discussion

As construed by the Magistrate Judge, Pandolfi's petition

raises ten claims, seven of which have been properly exhausted -

counts one through three, five through seven, and ten. See

Magistrate Judge's Order dated October 3, 2006 (document no. 22).

Pandolfi withdrew the claims advanced in counts four, eight, and

nine. In his surviving claims, Pandolfi alleges that:

3 The trial judge interfered with Pandolfi's trial and pretrial proceedings by making forensic and scientific findings that resulted in improperly admitted evidence;

Pandolfi's trial counsel was ineffective when he failed to object to or confront certain testimony, neglected to challenge the grand jury proceedings, failed to obtain certain discovery, waived Pandolfi's probable cause hearing without his consent, and failed to present evidence favorable to Pandolfi at trial;

Pandolfi's appellate counsel was ineffective when he filed appeal paperwork on Pandolfi's behalf while acting under a conflict of interest;

The prosecutor engaged in misconduct by knowingly presenting false evidence to the grand jury;

Pandolfi was denied the right to confront and cross-examine witnesses against him when the judge denied him access to certain impeachment evidence (i.e., prior statements and testimony of the victim);

Pandolfi's sentence is vindictive and unsupported by evidence in that it is based on unsupported allegations against him, and because it was based on a prosecutor's recommendation that increased after trial from what had been offered during plea negotiations; and, finally,

Pandolfi is being subjected to an unconstitutional term of imprisonment because the sentencing judge gave him an extended sentence and because he is being punished for refusing to plead guilty and, instead, exercising his constitutional right to a jury trial.

See Magistrate Judge's Order dated June 7, 2005 (document no. 5).

I. The State's Motion to Dismiss.

The State moves to dismiss those counts in which Pandolfi

asserts that he is being (or has been) denied the right to parole

4 and/or good time credits. As the State correctly notes, the

Magistrate Judge already addressed those claims and held that

they are not viable in the context of a habeas petition (that is,

they do not raise federal constitutional issues).

To the extent that Pandolfi intends to state a violation of a right to be released on parole, such a claim is not cognizable in a federal habeas petition. It is well-settled that a convicted person has no constitutional right to be conditionally released before the expiration of a valid sentence. See Greenholtz v. Inmates of Neb. Penal & Corr. Complex.

(1979). A valid conviction, with all its procedural safeguards, extinguishes that liberty right. Id.; see also Meachum v. Fano,

(1976). If Pandolfi's amended petition continues to include a habeas claim for a violation of his right to be granted parole, such a claim will be dismissed when the amended petition is reviewed by this Court.

Order dated June 7, 2005 at 5 n.l. Accordingly, to the extent

counts seven and ten of the petition advance claims that Pandolfi

is being denied the right good time credits and/or to be released

on parole, those counts are dismissed and defendant's motion

(document no. 38) is granted. What remains, then, is that

portion of count seven in which Pandolfi claims that his sentence

was enhanced based on unsupported and unproven allegations.

II. The State's Motion for Summary Judgment.

The State asserts that, notwithstanding the Magistrate

Judge's preliminary finding that Pandolfi exhausted each of the

5 remaining claims, he actually failed to raise most, if not all,

of those issues on appeal to the New Hampshire Supreme Court.

And, says the State, because Pandolfi is now procedurally barred

from raising those claims in state court, and because he cannot

demonstrate either "cause and prejudice" for his failure to

present those claims or that "a fundamental miscarriage of

justice" would result if this court did not address them (i.e.,

that he is actually innocent of the crimes of conviction), he is

not entitled to habeas relief.

The State may, indeed, be correct - it is difficult to tell,

given the complex procedural history of this case and the

numerous state court opinions resulting from the parallel tracks

of state proceedings (i.e., Pandolfi's direct appeal to the state

supreme court of his convictions, a remand to the trial court on

one issue, and a series of collateral attacks upon the

convictions in the trial court, some of which were appealed to

the state supreme court). Adding to the confusion is the fact

that Pandolfi's filings are rambling, non-responsive and, at

best, difficult to decipher - understandable, perhaps, given his

pro se status. Nevertheless, his filings are decidedly

unhelpful. Consequently, the most prudent and efficient way to

6 address Pandolfi's claims is to consider them de novo, on the

merits. See

(b)(2).

A. Evidentiary Claims

Pandolfi first claims that the trial judge made improper

"forensic and scientific findings," Petition (document no. 1) at

10, and allowed the prosecution to introduce inadmissible

evidence against him. Specifically, Pandolfi asserts that the

trial court erred in allowing the prosecution to introduce

photographs of the scar on the victim's chest - a scar she said

Pandolfi caused when he cut her with a razor blade.

To prevail on his claim that the trial court's improper

admission of evidence entitles him to federal habeas corpus

relief, Pandolfi bears a substantial burden. As the court of

appeals for this circuit has observed, "[t]o be a constitutional

violation, a state evidentiary error must so infuse the trial

with inflammatory prejudice that it renders a fair trial

impossible." Petrillo v. O'Neill.

, 44 n.2 (1st Cir.

2005) (citation omitted). See also Evans v. Verdini.

(1st Cir. 2006); Subiloskv v. Callahan.

(1st Cir. 1982).

7 The State says (and, as far as the court can tell, Pandolf

does not seem to dispute1) that the relevant factual background

to Pandolfi's evidentiary claim is as follows:

Prior to the first trial, Pandolfi's counsel filed a motion seeking to compel [the victim] to submit to additional photographing of the scar on her chest. At a hearing on October 20, 1997, defense counsel argued that the additional photographs were necessary because his expert had said that the existing photographs were insufficiently clear for him to render an opinion about whether the scar was consistent with [the victim's] description of the injury and its cause. The court (Mohl, J.) looked at the photographs, and found that the scar was "definitely observable," and that based on his "common experience" in "dealing with scars," and "without a great degree of medical, scientific background," it appeared to him to be the type of scar that would have been left by a "thin, not deep cut that would leave probably a blood scar initially, and then could go to a faint line." Defense counsel then argued that the expert needed photographs of the entire scar, not just the part around [the victim's] bra that was visible in the existing photographs. The court found that new photographs would most likely not be any clearer, that an examination of [the victim] would probably be the only way for an expert to determine the exact nature of the scar, and that the injury to [the victim] was not an element of the offense. The State objected to a physical examination. The court then held that since the photographs were clear enough for it to see and evaluate, they were sufficient for the expert to do the same.

1 See Petitioner's motion for summary judgment (document no. 35); petitioner's supplemental motion (document no. 67); petitioner's objection to summary judgment (document no. 44); a petitioner's supplemental objection (document no. 53). Respondent's Memorandum in Support of Summary Judgment (document

no. 48-2) at 17 (citations omitted). The State then argues that,

in light of the foregoing:

[I]t is clear that the court did not make a scientific finding or rule on the admissibility of the photographs, but instead, ruled only that the photographs were sufficiently clear to be of use to the expert, and not so critical that [the victim] should be compelled to submit to being photographed again or to a physical examination.

Finally, the State points out that the (allegedly) improper

evidentiary ruling had no effect on Pandolfi's trial.

Specifically, it notes that the judge who ruled on Pandolfi's

motion to compel additional photographs - the "motion judge" -

was not the judge who presided over Pandolfi's trial and:

the photographs were admitted without objection, without any findings by the trial judge, and without reference to the motion judge's comments about the scar. Therefore, the admission of the photographs was in no way linked to the prior findings [by the motion judge]. Further, whether a thin, shallow cut by a razorblade was capable of causing that type of scar was not a scientific matter beyond the ken of the average juror. See United States v. Shirev.

(1959) (the term scientific refers to issues "beyond the ken of the average man"); see also Fed. R. Ev. 702; N.H. R. Ev. 702. In addition, [the victim] laid a sufficient foundation for the admission of the photographs when she identified them as photographs depicting part of the scar on her chest, which had been taken in 1996 or 1997. Moreover, even if the photographs had been improperly admitted, [the victim] testified about the cause of the scar, and showed the scar to the jury. Therefore, the pictures depicted

9 only what the jury had already seen, and it could make its own assessment of whether the type of injury described by [the victim] could have caused the type of scar they saw.

Id. at 18 (citations omitted).

In response to the State's argument, Pandolfi has failed to

demonstrate that the motion judge made impermissible "forensic

and scientific findings," nor has he shown that the trial court's

(alleged) error in improperly admitting evidence against him

(i.e., the photographs) was so grave as to have infringed upon

any of his constitutional rights. Consequently, as to those

claims, he is not entitled to habeas relief.

B. Ineffective Assistance of Counsel

To prevail on an ineffective assistance of counsel claim, a

petitioner must "show, by a preponderance of the evidence, that

[his or her] trial counsel's conduct fell below the standard of

reasonably effective assistance and that counsel's errors

prejudiced the defense." Gonzalez-Soberal v. United States.

(1st Cir. 2001) (citing Strickland v. Washington.

(1984)). See also Cofske v. United States.

(1st Cir. 2002). In assessing the quality of counsel's

representation, the court employs a highly deferential standard

10 of review and "must indulge a strong presumption that counsel's

conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action might be

considered sound trial strategy." Strickland.

(citation and internal quotation marks omitted).

In other words, to satisfy the first prong of the Strickland

test, a petitioner must demonstrate that his counsel made errors

that were "so serious that counsel was not functioning as the

■'counsel' guaranteed the defendant by the Sixth Amendment."

Smullen v. United States.

(1st Cir. 1996) (quoting

Strickland.

)). And, to satisfy the second prong

of the Strickland test, a petitioner must show "actual

prejudice." As the court of appeals has observed, "prejudice

exists in a particular case when there is a reasonable

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

result of the proceeding would have been different." Gonzalez-

Soberal .

(citation and internal quotation marks

omitted). A reasonable probability is "one sufficient to

undermine confidence in the outcome."

(citation omitted).

11 In his habeas petition, Pandolfi asserts that trial counsel

was ineffective for a variety of reasons. Specifically, he

challenges counsel's: failure to object to the court's

"scientific finding" that resulted in the admission of the

photograph of the victim's scar; failure to present evidence

Pandolfi says proves that his victim became pregnant by him four

years after the attack (alleged evidence Pandolfi presumably

believes would have impeached the victim's claim that she was

frightened of him); failure to obtain police records of all

prosecution witnesses; waiver of a probable cause hearing without

Pandolfi's consent; and failure to obtain DNA samples from

individuals Pandolfi says actually committed the crime. He also

claims that his appellate counsel provided constitutionally

deficient representation by filing pleadings on Pandolfi's behalf

while acting under a conflict of interest.

Most of Pandolfi's claims are either without factual support

or so plainly meritless as to warrant no discussion. For

example, his claim regarding DNA evidence is illogical. Because

the victim did not report Pandolfi's assault upon her until years

after the crime, none of the assailant's DNA was collected from

the victim or the crime scene. Consequently, Pandolfi's notion

that DNA samples from other individuals would prove his innocence

12 is simply incorrect. It naturally follows that if Pandolfi did,

in fact, ask defense counsel to obtain such DNA samples and

counsel refused, such a refusal did not amount to ineffective

assistance.

In any event, Pandolfi's ineffective assistance of trial

counsel claims were fully addressed by the state superior court,

in its order dated November 1, 2005. In that order, the court

(Mohl, J.) properly identified the governing federal law and

applied that law to the facts presented in an entirely reasonable

and appropriate manner. Pandolfi has failed to show how the

state court erred in resolving that claim. And, more importantly

for purposes of his habeas petition (and this court's de novo

review of his claims), he has not carried his burden as to either

prong of the Strickland test as to his claims that trial and

appellate counsel were ineffective. See Respondent's Memorandum

in Support of Summary Judgment (document no. 48-2) at 20-29

(discussing each of Pandolfi's various ineffective assistance

claims). Accordingly, having considered those claims de novo,

the court concludes that neither Pandolfi's trial counsel nor his

appellate counsel provided constitutionally deficient

representation.

13 C. Prosecutorial Misconduct

Next, Pandolfi asserts that the county prosecutor engaged in

misconduct by knowingly presenting false evidence to the grand

jury. Specifically, Pandolfi says, "[s]tatements given to the

grand jury were consistently in error were [sic] age was

concerned by showing conspiratorial consistency in these

motivated statements." Petition at 12. The State plausibly

construes Pandolfi's pleading to assert that the prosecutor

engaged in misconduct by knowingly presenting false evidence to

the grand jury about the victim's age. See Respondent's

Memorandum in Support of Summary Judgment at 29.

The indictment returned by the grand jury belies Pandolfi's

claim. In it, the grand jury charged that, between January 1 and

February 28, 1989, Pandolfi forcibly raped his victim, "whose

date of birth is 10/14/74, by holding her down using superior

physical strength, cutting her chest with a razor blade, and

slapping her repeatedly across the face." Id,., Count I. In

Count II of that indictment, the grand jury referenced the victim

as "a 14 year-old girl whose date of birth is 10/14/74."

Pandolfi does not dispute that his victim was born in October of

1974, as alleged in the indictment. Consequently, he is

incorrect in asserting that the grand jury was misinformed as to

14 her age. On the date of the assault, Pandolfi's victim was 14

years-old.

D. Confrontation of Witnesses

As construed by the Magistrate Judge, Pandolfi's petition

next alleges that he was denied the right to confront and cross-

examine witnesses against him when the trial judge denied him

access to the victim's grand jury testimony, her prior trial

testimony, and her various statements to the police - all of

which, says Pandolfi, he could have used to impeach her testimony

at the second trial. Specifically, Pandolfi says his "[r]ight to

confrontation and cross-examination have been denied to me.

Judge Fauver [the presiding judge at Pandolfi's second trial]

stated 'it doesn't matter what [the victim] said then, it only

matters what she's saying now' referring to all of the

testimonial evidence given to police and a grand jury." Petition

at 11.

In response, the State says that, despite a comprehensive

review of the trial transcript, it has been unable to locate any

such statement by Judge Fauver. Nor does there appear to be any

evidence in the record supporting Pandolfi's broader claim that

he was denied evidence which might have had impeachment value.

15 Pandolfi has not, for example, pointed to any discovery motions

seeking the victim's statements or prior testimony that were

denied by the trial court. Moreover, says the State, "defense

counsel extensively cross-examined [the victim] on discrepancies

between her testimony at trial and her prior statements and

testimony." Respondent's memorandum at 19 (citations omitted).

And, finally, the State points out that the victim's "prior

[written] statements and transcripts [of her prior trial

testimony and of audio and video interviews] were admitted into

evidence and provided to the jury." Ici. (citations omitted).

Accordingly, the State asserts that there is no factual basis for

Pandolfi's claim that he was denied materials necessary to

effectively cross-examine the victim. Ici. The court agrees.

Unfortunately, Pandolfi does not respond to the State's

assertion and has failed to point the court to the transcript in

which it might find the statement he attributes to the trial

judge. More importantly, however, Pandolfi has failed to

specifically identify the impeachment evidence he claims he was

denied, nor has he shown that such (alleged) evidence was

material. And, as the court of appeals has noted:

Impeachment evidence must be material before its suppression justifies a new trial. The suppression of impeachment evidence is "material" when a reasonable

16 probability exists that the result of the trial would have been different if the suppressed documents had been disclosed to the defense. A "reasonable probability" exists if the Government's evidentiary suppression undermines confidence in the verdict.

Conley v. United States.

(1st Cir. 2005)

(citations and internal punctuation omitted). Here, as the State

notes, Pandolfi's trial counsel had complete access to the

victim's written statements to the police, transcripts of her

prior testimony, and transcripts of her audio and video-taped

interviews. And, counsel used that material extensively at trial

in an effort to impeach the victim's testimony. Given that fact,

particularly in light of Pandolfi's failure to identify the

impeachment evidence he believes was wrongly suppressed and his

failure to discuss how such (alleged) impeachment evidence might

undermine confidence in the jury's verdict, Pandolfi is not

entitled to habeas relief on that claim.

E. Unconstitutional Sentence

Following his convictions, Pandolfi was sentenced to serve

IV2 to 15 years on the felony count, and consecutive sentences of

12 months on each of the two misdemeanor counts, followed by two

years of probation on each misdemeanor count - the maximum

sentences then allowed by New Hampshire law. See N.H. Rev. Stat.

Ann. 651:2 (1989).

17 In attacking those sentences, Pandolfi first alleges that

they are "vindictive" because they are substantially greater than

what he says the prosecutor offered him during plea negotiations.

In other words, it seems Pandolfi claims that he is being

unfairly (and unconstitutionally) punished for having rejected

the prosecutor's plea offer, asserted his innocence, and gone to

trial. The Supreme Court has, however, explicitly rejected such

a claim, explaining that:

[TJhere is no per se rule against encouraging guilty pleas. We have squarely held that a State may encourage a guilty plea by offering substantial benefits in return for the plea. The plea may obtain for the defendant the possibility or certainty not only of a lesser penalty than the sentence that could be imposed after a trial and a verdict of guilty, but also of a lesser penalty than that required to be imposed after a guilty verdict by a jury.

Corbitt v. New Jersey.

(1978) (citations and

internal punctuation omitted) (emphasis in original).

Accordingly, the Court noted:

While confronting a defendant with the risk of more severe punishment clearly may have a discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices is an inevitable - and permissible - attribute of any legitimate system which tolerates and encourages the negotiation of pleas. It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor's interest at

18 the bargaining table is to persuade the defendant to forgo his right to plead not guilty.

(citations and internal punctuation omitted).2

Next, Pandolfi claims his sentences violate his

constitutional rights because the sentencing judge relied upon

unsubstantiated allegations contained in the sentencing report.3

But, despite Pandolfi's allegation to the contrary, the judge

unequivocally stated that he was not taking those allegations

into account when calculating Pandolfi's sentence. Specifically,

at the close of counsels' arguments on sentencing (during which

the uncharged misconduct was referenced), the judge said, "All

right. I am not considering anything which is unsubstantiated

even though the State suggests that the door has been opened. I

will not consider that in imposing sentence." Transcript of

2 There is, of course, an extremely limited class of cases in which the Court has held that an individual's constitutionally protected rights might be infringed when the statutorily prescribed maximum available sentence following a guilty plea is substantially less than the sentence prescribed for an individual who goes to trial and is found guilty (e.g., life imprisonment vs. death penalty). See, e.g.. United States v. Jackson.

(1968). Pandolfi's case does not, however, fit into that very narrow category.

3 Those allegations concern a claim that Pandolfi sexually assaulted an eight-year-old girl. The record suggests that police investigated that claim, but the girl was either unable or unwilling to cooperate. Accordingly, no charges were filed against Pandolfi.

19 Sentencing Hearing at 22. Rather, the judge explained that he

was imposing the maximum sentences allowed by law because:

I've been doing this for a little over six years now at the Superior Court level, and I have no hesitation to say that the offense which was committed was probably one of the most violent that I've seen, and I've tried a number of sexual assault and aggravated felonious sexual assault cases. There is no question in my mind, based on the evidence that was presented, that you placed this victim in fear not only for her safety and her life on that day, but also traumatized her so as to affect her . . . . for the rest of her life to a substantial degree. For the want of any better word, sir, it was a depraved act and it was an act which . . . carried with it a level of brutality which, frankly, was somewhat shocking.

Id. at 23-24. Among other things, the sentencing court also

noted that:

Usually I put on top of the list the reason for sentencing as being one of rehabilitation, but in this situation, sir, I think that I've got to take and put on top of that list the need to protect the public because in my opinion, sir, you're a very violent man and the public needs to be protected from you. ic ic ic

I don't know what more I can say other than to say that my only regret in imposing this sentence is that I cannot do more; I cannot impose a greater sentence than I'm going to impose because I'm going to give you every minute at the State Prison that I possibly can and I'm going to give you every minute after the State Prison that I possibly can, consistent with the limitations that I have imposed upon me by the laws of this State, because you deserve every minute that I'm going to give you.

20 Id. at 25-26.

Plainly, then, the sentencing judge was aware of the

statutorily prescribed maximum sentences that were available for

Pandolfi's three crimes of conviction, he consciously and

deliberatively chose to impose those maximum sentences, and he

explained his reasons for doing so. Equally plain is the fact

that the sentencing judge did not rely on any unsubstantiated

evidence of uncharged misconduct in imposing the sentences that

he did.

Conclusion

Having reviewed each of Pandolfi's habeas claims de novo,

the court concludes that, for the foregoing reasons as well as

those set forth in the State's memoranda, he is not, as a matter

of law, entitled to habeas relief as to any of the claims set

forth in his petition. His motion for summary judgment (document

no. 35) is, therefore, denied. The State's motion to dismiss

count ten and a portion of count seven (document no. 38) is

granted, as is the State's motion for summary judgment (document

no. 48). Pandolfi's motion for a hearing (document no. 60) is

denied as moot, as is his "motion requesting status" (document

n o . 6 8).

21 The Clerk of Court shall enter judgment in accordance with

this order and close the case.

SO ORDERED.

StTeven J./McAuliffe thief Judae

August 6, 2 008

cc: William J. Pandolfi, pro se Susan P. McGinnis, Esq.

22