Blackmer v. Warden, N. NH DOC 05-CV-340-PB 01/28/08 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Paul Blackmer

v. Civil No. 05-CV-340-PB Opinion No.

Warden, Northern New Hampshire Correctional Facility

MEMORANDUM AND ORDER

Paul Blackmer's habeas corpus petition challenges his March

11, 1999 conviction for conspiracy to possess marijuana with

intent to sell. His jailer, the Warden of the Northern New

Hampshire Correctional Facility, has moved for summary judgment.

For the reasons set forth below, I grant the Warden's motion.

I. FACTS AND PROCEDURAL HISTORY

This case has a complex procedural history that encompasses

separate convictions in 1997 and 1999. I describe the facts and

procedural history of each case in turn, focusing in greater

detail on the 1999 conviction because it is the subject of the

current challenge. A. 1997 Conviction

1. Facts

Blackmer was arrested in 1994 after he retrieved packages

containing approximately 50 pounds of marijuana from a United

Parcel Service office in Laconia, New Hampshire.

2. Procedural History

Blackmer was originally indicted in 1994, shortly after his

arrest, but the state dismissed the indictments without prejudice

prior to trial. Blackmer was reindicted in May 1996. On

December 23, 1997, he was convicted after a jury trial of

possession of marijuana with intent to sell and conspiracy to

possess marijuana with intent to sell.

Blackmer's counsel filed a notice of appeal on his behalf

with the New Hampshire Supreme Court. Prior to briefing,

however, Blackmer filed a pro se "Motion to Stay Appeal and

Remand to Resolve Brady Material Answer Issue." In this motion,

Blackmer sought a remand to the superior court so that the state

could be compelled to respond to his contention that one of the

investigating officers, DBA Agent Michael Connolly, committed

perjury before the grand jury that had returned the original

- 2 - indictment.1 The superior court denied Blackmer's motion and

directed him to file his appellate brief. After Blackmer failed

to file a brief, the New Hampshire Supreme Court dismissed his

appeal pursuant to N.H. Supr. C t . R. 16(12).

Blackmer litigated various post-conviction motions in state

court and ultimately filed his habeas corpus petition in this

court on May 29, 2003. On December 9, 2004, I issued a

Memorandum and Order dismissing Blackmer's petition on statute of

limitations grounds. Blackmer v. Warden.

.

B. 1999 Conviction

1. Facts

Detective Kenneth May, acting undercover, befriended

Blackmer in December 1995 at the Christmas Island Restaurant in

Laconia, New Hampshire. While in New Hampshire, May and Blackmer

discussed drug trafficking and made plans to travel together to

Mexico to obtain marijuana and transport it back to the East

Coast. Many of their discussions were tape-recorded by Detective

May.

1 I adopt Blackmer's characterization and refer to the state's anticipated response as the "Brady Material Answer."

- 3 - Blackmer alleges that he knew that Detective May was an

undercover policeman and that the police knew that Blackmer was

aware of May's true identity. It is undisputed that Blackmer and

May traveled to California together in January 1996, and that the

two shared a hotel room in California which, unbeknownst to

Blackmer, was paid for with money from the Drug Enforcement

Agency (DEA). May consented to have the room videotaped. It is

undisputed that Blackmer was in contact with a man in Mexico

named Jorge Flores, although Blackmer disputes the state's

allegation that his contact with Flores was for the purpose of

drug trafficking.

At trial. May testified that Blackmer crossed into Mexico to

meet with Flores and that Blackmer devised a plan to pay Flores

$5,000 for marijuana to be smuggled into the United States for

distribution by Blackmer and May. Blackmer disputes these facts.

It is undisputed that before Blackmer obtained any marijuana, he

was arrested in California. Following Blackmer's arrest,

officers seized evidence in a search incident to arrest and later

searched Blackmer's New Hampshire home pursuant to a valid

warrant.

- 4 - 2. Procedural History

A grand jury indicted Blackmer on May 30, 1996 on the charge

of conspiracy to possess marijuana with the intent to sell.2

Trial was originally scheduled for December 1997, but the court

granted Blackmer's motion to continue the trial until January

1998. On January 5, 1998, Blackmer filed a motion to continue

and a motion for new counsel, together with an irrevocable waiver

of his speedy trial rights. The court granted both motions,

appointing new counsel and continuing the trial indefinitely

until new counsel was prepared. The court held a status

conference on the matter on May 26, 1998. At that conference,

Blackmer and his counsel again informed the court that Blackmer

had waived his speedy trial rights. On September 23, 1998, the

court scheduled trial for February 1999, with the parties in

agreement. On January 25, 1999, the court granted the state's

agreed-to motion to continue, and the trial was rescheduled for

March 8, 19 9 9.

A four-day jury trial was held in Belknap County Superior

Court on March 8-11, 1999. Blackmer was found guilty of one

2 The indictment was returned with the indictments that resulted in the 1997 convictions but the two sets of charges were severed for trial.

- 5 - count of conspiracy to possess marijuana with intent to sell in

violation of

; 318-B:2 (1996). He

was sentenced to six to twenty years in prison.

Blackmer's counsel filed a notice of appeal on his behalf

raising numerous issues. Blackmer, however, filed a pro se

objection seeking to have the appeal held in abeyance until the

state provided the same "Brady Material Answer" that he had been

seeking in his other case. He also instructed his counsel not to

file a brief on his behalf until he received the information he

was seeking from the state. This prompted counsel to file a

motion to withdraw. Blackmer then filed a supplement to the

motion to withdraw asking the court to resolve the issue by

ordering the state to produce the Brady Material Answer.

Instead, the court granted counsel's motion to withdraw.

Blackmer ultimately filed a pro se appellate brief, although the

court never required the state to produce the Brady Material

Answer.

The New Hampshire Supreme Court addressed only three of the

many arguments that Blackmer presented in his appellate brief

because it concluded that his additional arguments either "were

not preserved, were not sufficiently developed for appellate

- 6 - review, or were not raised in his notice of appeal." State v.

Blackmer,

(2003).

The first argument that the court considered was Blackmer's

contention that the state had violated his right to a speedy

trial by failing to provide him with the transcript of Agent

Connolly's 1994 grand jury testimony. The court rejected this

argument both because it determined that the testimony was

irrelevant and because the state had given Blackmer a transcript

of Agent Connolly's testimony in 1997, well before his 1999

trial. I d . at 49.

The court also considered and rejected Blackmer's related

contention that he could not properly brief the speedy trial

issue because the court had denied him his right to appellate

counsel. In reaching this conclusion, the court explained that

it would have been futile to appoint new appellate counsel for

Blackmer because his pro se pleadings made it clear that he would

not allow counsel to file a brief. I d . at 50.

The second issue that the court considered was Blackmer's

argument that he could not be convicted of conspiracy because his

alleged conspirator. Detective May, was a police officer who

never actually intended to possess or sell marijuana. The court

- 7 - rejected this "unilateral conspiracy" argument because it

determined that the New Hampshire conspiracy statute "does not

necessarily require that both parties to the conspiracy possess

criminal intent."

The final issue that the court considered was Blackmer's

contention that he should have been sentenced under Massachusetts

law because the alleged conspiracy involved an agreement to sell

drugs in Massachusetts and the New Hampshire conspiracy statute

provides that the penalty for conspiracy "is the same as that

authorized for the crime that was the object of the conspiracy."

IV. The court rejected this

argument because it construed New Hampshire conspiracy law to

incorporate the penalty specified by New Hampshire law for the

crime of selling marijuana. Blackmer,

. The

court also rejected any potential argument from Blackmer that the

court lacked jurisdiction over him. I d . at 51.

After affirming Blackmer's conviction, the New Hampshire

Supreme Court appointed counsel to represent him on his motion

for reconsideration. Blackmer and his counsel filed separate

motions. Counsel's motion argued that the court should order a

rehearing on the issue of whether a conspiracy involving controlled substances can be formed by a unilateral agreement.

Blackmer's motion argued both that the crime of conspiracy

requires an actual meeting of the minds, not just a unilateral

agreement, and that the state interfered with his right to

effective assistance of counsel on appeal because it refused to

disclose the "Brady Material Answer." Blackmer challenged the

New Hampshire Supreme Court's conclusion that he effectively

chose to proceed pro se, arguing that he "would gladly have

accepted Appellate Defender assistance were that counsel armed

with the ■'delightfully exculpatory Brady Material Answer' as the

law requires." The court denied Blackmer's motion for

reconsideration on March 14, 2003.

Blackmer filed a motion for a new trial in Belknap County

Superior Court on November 17, 2003. Although Blackmer asserted

a variety of claims, the court addressed only two because it held

that his remaining arguments "are nothing more than a rehash of

claims made on prior occasions by him, all of which have been

rejected by this Court." The court denied Blackmer's motion on

December 30, 2003, holding that his claims -- ineffective

assistance of counsel because counsel defended him on a bilateral

- 9 - conspiracy theory rather than a unilateral conspiracy theory3 and

a challenge to the constitutionality of

on vagueness grounds -- were meritless.

Blackmer filed a pro se petition for a writ of habeas corpus

in Merrimack County Superior Court on August 30, 2004. The state

moved to dismiss the petition, addressing each of Blackmer's

claims and arguing for dismissal of some claims on procedural

grounds and others on the merits. The court granted the state's

motion on November 17, 2004 "for the reasons stated in the

motion." The court denied Blackmer's motion for reconsideration

on December 16, 2004.

Blackmer then filed a notice of appeal with the New

Hampshire Supreme Court on January 11, 2005, appealing the denial

of both his habeas petition and his motion for a new trial. On

June 13, 2005, the court declined Blackmer's appeal to the extent

that he challenged denial of his habeas petition and dismissed as

3 A "unilateral" conspiracy is one in which only one party has criminal intent, while a "bilateral" conspiracy is one in which two or more parties have criminal intent. New Hampshire follows the unilateral theory of conspiracy; thus, a person can be convicted of conspiracy for forming an agreement with another party who has no criminal intent and/or is immune from criminal liability, such as an undercover police officer. N.H. Rev. Stat. A n n . § 6 2 9:3.

- 10 - untimely Blackmer's appeal to the extent that he challenged the

denial of his motion for a new trial.

II. STANDARDS OF REVIEW

A. Summary Judgment

Summary judgment is appropriate when "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." Fed. R. Civ. P.

56(c). A party seeking summary judgment must first identify the

absence of a genuine issue of material fact. Celotex Corp. v.

Catrett,

(1986). The burden then shifts to the

nonmoving party to "produce evidence on which a reasonable finder

of fact, under the appropriate proof burden, could base a verdict

for it; if that party cannot produce such evidence, the motion

must be granted." Avala-Gerena v. Bristol Mvers-Sauibb Co..

(1st Cir. 1996); see Celotex.

.

B. AEDPA

I evaluate Blackmer's claims in accordance with the Anti-

Terrorism and Effective Death Penalty Act ("AEDPA"). Under

- 11 - AEDPA, a federal court has the power to grant a writ of habeas

corpus for a state prisoner who is being held in violation of the

U.S. Constitution or federal law, subject to several

restrictions.

(c). First, under AEDPA, an

application for a writ of habeas corpus cannot be granted with

respect to a claim that was adjudicated on the merits in state

court unless adjudication of the claim "(I) 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; or (2) 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).

AEDPA's "contrary to" and "unreasonable application"

provisions have independent meaning and must be read separately.

Williams v. Tavlor,

(2000). A state court

decision can be "contrary to" established Supreme Court precedent

if either the state court reaches a conclusion on a question of

law opposite to that reached by the Supreme Court, or a state

court "confronts a set of facts that are materially

indistinguishable" from relevant Supreme Court precedent and

- 12 - reaches an opposite result. I d . at 405-06. A state court

decision is an "unreasonable application" of Supreme Court

precedent if the state court "identifies the correct governing

legal rule from this Court's cases but unreasonably applies it to

the facts" of a prisoner's case, or if "the state court either

unreasonably extends a legal principle from our precedent to a

new context where it should not apply or unreasonably refuses to

extend that principle to a new context where it should apply."

I d . at 40 7.

As the Supreme Court recently held, "The question under

AEDPA is not whether a federal court believes the state court's

determination was incorrect but whether that determination was

unreasonable - a substantially higher threshold." Schriro v.

Landriqan.

(2007). Determinations of fact

made by the state court are presumed to be correct; the

petitioner has the burden of rebutting this presumption of

correctness by clear and convincing evidence.

(e)(1); Schriro.

.

A federal court has no power to grant a writ of habeas

corpus for a prisoner who is held pursuant to a state court

judgment that rests on an independent and adequate state ground.

- 13 - Coleman v. Thompson,

(1991). To do so would

render the state rule ineffective and "ignore[] the State's

legitimate reasons for holding the prisoner."

A

consistently applied and regularly enforced state procedural rule

that causes a prisoner's federal claims to be procedurally

defaulted can serve as an independent and adequate state ground.

When application of an independent and adequate state procedural

rule results in procedural default on a petitioner's federal

claims, "federal habeas review of the claims is barred unless the

prisoner can demonstrate cause for the default and actual

prejudice as a result of the alleged violation of federal law, or

demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice." I d . at 750; see also

Wainwriqht v. Svkes,

(1977)(applying the cause

and prejudice standard for procedurally defaulted claims); Lynch

v. Ficco.

(1st Cir. 2006).

Finally, a federal court ordinarily cannot grant a writ of

habeas corpus on a state prisoner's behalf unless the prisoner

has exhausted the remedies available in state court prior to

bringing a federal habeas corpus petition.

(b)(1). Numerous federal courts have held, however, that

- 14 - the exhaustion requirement is satisfied if remand to state court

would prove futile because the claims would be procedurally

barred under state procedural rules. See Allen v. Attorney Gen.

of Maine.

(1st Cir. 1996); see, e.g.. Lines v.

Larkins,

(3d Cir. 2000); Bailey v. Nagle.

(11th Cir. 1999); Doctor v. Walters.

(3d Cir. 1996). Therefore, if remand for exhaustion would be

futile with respect to the unexhausted claims, I may consider

those claims procedurally defaulted.

Ill. ANALYSIS

Blackmer presents nineteen overlapping grounds for relief

that fall into six distinct categories.4 I analyze his arguments

with respect to each category of claims in turn.

A. Speedy Trial

Blackmer claims that the state violated his Sixth Amendment

right to a speedy trial (grounds 3 and 14). He alleges that the

delay was caused by prosecutorial misconduct, namely, the state's

failure to turn over the "Brady Material Answer."

4 I resolved Blackmer's additional claims in a prior order (Doc. No. 40) approving the Magistrate Judge's Report and Recommendation (Doc. No. 35).

- 15 - Blackmer first asserted his speedy trial claim in a motion

to dismiss. The court summarily denied this motion prior to

trial and provided further explanation of its reasoning in an

order dated March 24, 1999. The court concluded that the

Connolly testimony (the subject of the "Brady Material Answer")

was irrelevant to the charges because Connolly provided the

testimony in 1994 and the conduct giving rise to the conviction

at issue did not occur until late 1995. The court further noted

that Blackmer himself caused most of the delay prior to trial.

The New Hampshire Supreme Court addressed this claim on

direct appeal, holding both that Connolly's testimony was

irrelevant to the 1999 conviction and that, in any event, the

state gave Blackmer a copy of Connolly's grand jury testimony in

1997. To the extent that Blackmer claimed that he was entitled

to the Brady Material Answer prior to trial, the court also held

that Connolly's testimony was irrelevant even if it was

perjurious. Examining the record and giving deference to the

factual findings of the state court, I cannot say that the state

court's adjudication of this issue resulted in a judgment that

was contrary to or involved an unreasonable application of

federal law. Moreover, there is no indication that the state

- 16 - court based its decision on an unreasonable determination of the

facts. Accordingly, the Warden is entitled to summary judgment

with respect to grounds 3 and 14.

B. Unilateral Conspiracy

Blackmer next presents a series of arguments that are

premised on his contention that the state prosecuted him on a

unilateral conspiracy theory. The New Hampshire Supreme Court

rejected his core claim that state law does not permit a

conspirator to be convicted of a unilateral conspiracy.

Blackmer,

. In an effort to salvage something from

this argument, Blackmer asserts in a conclusory fashion both that

the state conspiracy statute is unconstitutionally vague (grounds

1 and 4) and that the trial court's jury instructions improperly

permitted the jury to convict him of participating in a

unilateral conspiracy (ground 17). Both arguments are obviously

without merit. Finally, Blackmer asserts that his counsel was

ineffective because he based Blackmer's defense on the incorrect

premise that a person could not be convicted of participating in

a unilateral conspiracy (grounds 1, 2, 22, 23). The Merrimack

County Superior Court properly rejected this argument when it

granted the state's motion to dismiss Blackmer's habeas corpus

- 17 - petition. Accordingly, the Warden's motion for summary judgment

is granted with respect to grounds 1, 2, 4, 17, 22 and 23.

C. Prosecutorial Misconduct

Blackmer next presents several claims that the state

committed prosecutorial misconduct. His principal argument

(ground 7) is that the state improperly failed to produce the

Brady Material Answer. The New Hampshire Supreme Court addressed

this issue in disposing of Blackmer's speedy trial claim when the

court reasonably determined that the information Blackmer was

seeking was irrelevant to his 1999 conviction. Blackmer,

. The state's alleged failure to produce irrelevant

information cannot serve as the basis for a Bradv violation.

United States v. Connolly.

(1st Cir. 2007).

Accordingly, this claim necessarily fails. To the extent that

Blackmer argues that the state interfered with his right to

counsel by refusing to produce the Brady Material Answer (ground

16), this argument also fails because the state is under no

obligation to produce irrelevant information.

The New Hampshire Supreme Court resolved Blackmer's

additional claims that the state improperly failed to produce a

memorandum from witness Jane Young (ground 6) and the identity of

- 18 - Grafton County Deputy Sheriff, Kenneth May, (ground 9) on

independent and adequate state law grounds. Blackmer raised both

arguments in a cursory way in his appellate brief but not in his

notice of appeal. The court declined to address these arguments

as well as several others on the ground that the arguments "were

not preserved, were not sufficiently developed for appellate

review or were not raised in his notice of appeal." Blackmer,

. Blackmer has failed to establish either cause or

prejudice for his failure to properly litigate these claims in

state court and he has also failed to demonstrate that failure to

review this claim will result in a fundamental miscarriage of

justice. Accordingly, the Warden's motion for summary judgment

is granted with respect to grounds 6, 7, 9 and 16.

D. Right to Counsel

Blackmer presents several claims that the state denied him

his Sixth Amendment right to counsel. His principal claim in

this area is that the New Hampshire Supreme Court improperly

denied him his right to counsel on appeal (grounds 10 and 15).

The Supreme Court explained in its order resolving Blackmer's

appeal that it declined to appoint new counsel after it allowed

his first appellate counsel to withdraw because it determined

- 19 - that such an appointment would be futile given Blackmer's

unwillingness to allow counsel to file a brief on his behalf

until the state produced the Brady Material Answer. I d . at 50.

The state court's finding on this point was reasonable under the

circumstances. Accordingly, Blackmer's right to appellate

counsel claims fail because he forfeited his right to counsel on

appeal.

Blackmer also argues that the court violated his right to

counsel by refusing to appoint counsel to represent him with

respect to his motion for new trial (ground 25). This argument

fails because a defendant does not have a Sixth Amendment right

to counsel with respect to a state post-conviction proceeding.

Pennsylvania v. Finley.

(1987).

Blackmer also alleges that the trial court interfered with

his right to effective assistance of counsel when it ordered

counsel to file a notice of appeal that was inadequate because

Blackmer had not yet received the Brady Material Answer (ground

19). This claim is meritless because, as discussed above, the

New Hampshire Supreme Court ruled that the Brady Material Answer

is irrelevant to Blackmer's charges. See Blackmer,

-50 .

- 20 - Blackmer further argues that the trial court interfered with

his right to effective assistance of counsel when it denied

counsel's motion for a mistrial after a witness mis-stated the

fact that marijuana had been found in Blackmer's home when, in

fact, the vegetative matter found in Blackmer's home was never

confirmed by chemical testing to be marijuana (ground 24). Even

if Blackmer could characterize this as a Sixth Amendment claim,

Blackmer can demonstrate no prejudice resulting from the trial

court's denial of counsel's motion for a mistrial because the

court required the prosecutor to cure the witness's mistake by

eliciting a clarification from the witness, in front of the jury,

that the matter found in Blackmer's home was never chemically

analyzed or confirmed to be marijuana. Accordingly, the Warden's

motion for summary judgment is granted with respect to grounds

10, 15, 19, 24 and 25.

E. Eighth Amendment Claim

Blackmer claims that the punishment he received in this case

violates his Eighth Amendment right to be free from cruel and

unusual punishment (ground 12). This argument was never

litigated in state court, but it would be futile to require

exhaustion both because it is evident under the circumstances

- 21 - that the state courts would deem the claim to be procedurally

defaulted and because the claim is obviously meritless in any

event. Accordingly, the Warden's motion for summary judgment is

granted with respect to ground 12.

F. Defective Indictment Claim

Blackmer claims that the state obtained his conviction by a

defective indictment in violation of his Fifth Amendment due

process rights (ground 11). Blackmer attempted to raise this

claim on direct appeal, but the New Hampshire Supreme Court

declined to consider it on procedural grounds because it was

either not preserved, not sufficiently developed for appellate

review, or not raised in the notice of appeal. Blackmer,

. Thus, the state court adjudication of this claim

rests on independent and adequate state grounds.

Blackmer has failed to establish either cause or prejudice

with respect to his procedural default on this claim, and he has

failed to demonstrate that this claim will result in a

fundamental miscarriage of justice. Accordingly, the Warden's

motion for summary judgment is granted with respect to ground 11.

- 22 - IV. CONCLUSION

For the reasons set forth in this Memorandum and Order, the

Warden's motion for summary judgment (Doc. No. 64) is granted.

The Clerk is directed to enter judgment accordingly.

SO ORDERED.

/s/Paul Barbadoro_______ Paul Barbadoro United States District Judge

January 28, 2008

cc: Paul Blackmer, pro se Elizabeth Baker, Esq.

- 23 -