Shaneyfelt v. Commissioner, DOC 06-CV-263-PB 01/28/08 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Harold E. Shaneyfelt, Jr.

v. Case No. 06-cv-263-PB Opinion No.

Commissioner, N.H. Department of Corrections

MEMORANDUM AND ORDER

Harold E. Shaneyfelt, Jr. was convicted of three counts of

felonious sexual assault. Shaneyfelt has petitioned this court

for a writ of habeas corpus, alleging that: (1) the trial court

erred by permitting the state to amend the indictment on the

first day of trial; and (2) trial counsel rendered ineffective

assistance by failing to object to the prosecution's improper

"golden rule" closing argument, failing to object to the

prosecution's improper expression of personal belief in

Shaneyfelt's guilt during closing arguments, and denying

Shaneyfelt the opportunity to participate actively in jury

selection. The government has moved for summary judgment. For

the reasons discussed herein, I grant the government's motion for

summary judgment. I. BACKGROUND

A. The Crime

On October 3, 1997, at around 5:00 pm. Dawn Young dropped

off her 9-year old and 7-year old daughters (respectively, "MYA"

and "MYB") at the home of Bill and Betty Bielinski, the girls'

grandparents. Dawn's son ("MYC") was already at the Bielinski

home. Harold Shaneyfelt arrived a few hours later and began

watching movies and playing with MYA, MYB, and MYC on the home's

enclosed sun porch. Later that night, after the children had

finished playing, MYC went inside and the girls, clad in t-shirts

and underwear, got into a sofa bed on the sun porch where they

normally slept when visiting the Bielinskis. Shaneyfelt, who was

still clothed, crawled into the bed in between the two girls and

sexually assaulted them by repeatedly touching their vaginal

areas.

B. The Indictment and Trial

The Rockingham County Grand Jury returned an indictment

charging Shaneyfelt with sexually assaulting MYA and MYB in

violation of

-A:3, III. The indictment

charged that Shaneyfelt sexually assaulted MYB by purposely

- 2 - touching her in "the vaginal area, over the underwear . . . under

circumstances that can be reasonably construed as being for the

purpose of sexual arousal or gratification."

During jury selection, Shaneyfelt insisted that counsel

challenge a potential juror. Counsel, however, told Shaneyfelt

to be quiet and refused to comply with his demand.1 The record

does not reveal why Shaneyfelt wanted to challenge the juror, and

there is no evidence suggesting that he communicated his concern

to the court.

After the jury was sworn, but before the trial began, the

state moved to amend the indictment as to MYB to strike out the

phrase "over the underwear." The trial court granted this motion

over Shaneyfelts objection.

MYB testified at trial that Shaneyfelt touched her vagina

with his hand inside her underwear. During her police

interviews, however, MYB initially denied that Shaneyfelt had

done anything inappropriate, and later told a police detective

that Shaneyfelt had touched her outside, not inside, her

1 Shaneyfelt did not provide a transcript of the voir dire, but did swear to the above factual averments. Because the government did not provide any contradictory evidence, I rely solely on Shaneyfelts sworn statement.

- 3 - underwear. Shaneyfelts attorney cross-examined MYB regarding

inconsistencies between her trial testimony and her statements to

the police.

Shaneyfelts attorney gave the first closing argument. He

began by noting that "it is at least possible that at the

conclusion of all of this, an innocent man could be convicted.

There's nothing that terrifies a defense lawyer more than that."

He then argued that Shaneyfelt's touching had either been

inadvertent or entirely fabricated by the girls. He attacked

their credibility by highlighting the lack of detail in MYA's

testimony and the inconsistencies in M Y B 's testimony, which

mostly related to collateral facts such as what they had eaten

for dinner on the evening of the crime, what movie they had

watched, and so on.

The prosecutor began his closing argument with an anecdote

about an injury he had suffered while playing basketball. He

remembered certain aspects vividly -- such as going to the

hospital and getting x-rays -- but could not remember what

clothes he had been wearing or what he had eaten for dinner. He

said:

- 4 - And why is that? It's . . . the nature of who we are. It's the nature of how we think . . . . [W]e remember the big things. We remember the big happy events. We remember the weddings. We remember the graduations. And we remember the sad things. We remember the funerals. We remember when somebody's mean to us, really mean to us and hurts us. And we know about them. And we remember facts about them. But there's a lot of stuff that goes with it that you don't remember. And use your common sense and judgment when you're thinking about that. And what are the things that you hold and the memories that you take with you and that you can recall? And you're thinking about these things as adults, but what we're talking about here is two kids who at the time one just turned seven, . . . and the other one was nine. So you use your common sense as adults to inform your decisions. But at the same time, try not to hold them to the same standard as an adult does. You have to think about how do kids deal with things. How do kids react? And try and use that as your guide when you're assessing their credibility. The things about the inconsistencies, about, you know, who had supper with -- what did you have for supper? Who pulled out the couch? Who put in the movie? Consider that for what you think it's worth. I'm not going to tell you to not consider it. You -- are going to judge what you think is rightand what you think happened, and I don't presume to tell you anything about that.

The prosecutor ended his closing by stating:

I think lastly I'll just end with this statement. [Defense counsel] had indicated that to be scared about convicting an innocent man, and the thing is is [sic] that he's not innocent . . . . Don't have a fear of convicting this guy. He is guilty of child molestation. He molested those girls. He did it, and he's guilty. Return verdicts of guilty on all three counts, ladies and gentlemen, these girls did only what we could expect you to do. He did it.

- 5 - Although defense counsel objected to another, unrelated aspect of

the closing, he objected neither to the basketball injury analogy

nor to the discussion of S h aneyfelts guilt.

The jury found Shaneyfelt guilty on all three counts of

felonious sexual assault.

C. Direct Appeal and Post-Conviction Proceedings

Shaneyfelt filed a direct appeal with the New Hampshire

Supreme Court, alleging, among other things, that the trial court

erred in allowing the government to amend the indictment to

delete the statement that Shaneyfelt had assaulted MYB "over the

underwear." In rejecting this argument, the court concluded that

the amendment was not problematic because it neither altered an

element of the charged offense nor otherwise prejudiced

Shaneyfelts defense. State v. Shaneyfelt. No. 2000-636 (N.H.

Oct. 25, 2002) (order denying direct appeal) ("NHSC Oct. 25, 2002

Order").

Shaneyfelt later filed a petition for post-conviction relief

in the Rockingham County Superior Court, alleging ineffective

assistance of counsel. The superior court denied Shaneyfelts

motion on November 20, 2003. Shaneyfelt appealed to the New

Hampshire Supreme Court, and on February 11, 2004, the Supreme

- 6 - Court remanded the case to the superior court for additional

fact-finding. On remand, the superior court rejected

Shaneyfelts ineffective assistance claims. State v. Shaneyfelt.

No. 98-S-782 (N.H. Super. C t . Dec. 14, 2005) (order denying

motion for postconviction relief) ("N.H. Super. C t . Dec. 14, 2005

Order"). Shaneyfelt appealed the superior court's ruling to the

New Hampshire Supreme Court, which summarily declined his appeal

on June 30, 2006.

II. STANDARD OF REVIEW

I review Shaneyfelt's petition under the standards

established by the Anti-Terrorism and Effective Death Penalty Act

(AEDPA),

. Under AEDPA, if a state court has

adjudicated the habeas petitioner's claim on the merits, a

federal court may grant relief to the petitioner only if the

state court's adjudication resulted in a decision that "was

contrary to" clearly established federal law, involved an

"unreasonable application" of clearly established federal law, or

was based on an "unreasonable determination of the facts in light

of the evidence presented."

(d). An application

of law is unreasonable when there is "some increment of

- 7 - incorrectness beyond error . . . . The increment need not

necessarily be great, but it must be great enough to make the

decision unreasonable in the independent and objective judgment

of the federal court." McCambridge v. Hall.

(1st

C i r . 2002 ) .

Where there has been at least one reasoned state court

judgment rejecting a federal claim, the habeas court should look

through later unexplained orders upholding that judgment or

rejecting the same claim and presume that those orders rest upon

the same ground as the prior order. Ylst v. Nunnemaker.

(1991); see also Phoenix v. Matesanz.

(1st Cir. 1999). In this case, there are two reasoned state

court judgments that I may look to for guidance. See NHSC Oct.

25, 2002 Order (denying relief as to amendment of the

indictment); N.H. Super. C t . Dec. 14, 2005 Order (denying relief

as to ineffective assistance).

If the state court does not expressly apply the federal

standard but resolves the issue under a state law standard that

is at least as favorable to defendants as the federal standard,

the reviewing court "will presume the federal law adjudication to

be subsumed within the state law adjudication." Teti v. Bender.

(1st Cir. 2007) (quoting McCambridge v. Hall. 303

F .3d 24, 35 (1st Cir. 2002)).

A federal court will presume that the state court's findings

of fact are correct. For this purpose, the term "facts" refers

to "basic, primary, or historical facts," such as witness

credibility and recitals of external events. Sanna v. DiPaolo,

(1st Cir. 2001) (quoting Bryson v. Ward.

(10th Cir. 1999)). The habeas petitioner may defeat

the presumption of correctness only with clear and convincing

evidence to the contrary.

(e)(1); see also Ouber

v. Guarino.

(1st Cir. 2002). This presumption of

correctness is equally applicable when a state appellate court,

as opposed to a state trial court, makes the findings of fact.

Norton v. Spencer.

(1st Cir. 2003) (quoting Sumner

v. Mata.

(1982)).

Ill. ANALYSIS

Shaneyfelt first argues that the trial court erred when it

permitted the state to amend the indictment on the first day of

trial. He also argues that his trial counsel was constitu­

tionally ineffective because he failed to object to the

- 9 - prosecutor's improper "golden rule" argument, failed to object

to the prosecutor's improper expression of personal belief in

Shaneyfelt's guilt, and denied Shaneyfelt the right to

participate in jury selection. I address each argument in turn.

A. Amendment of the Indictment

Shaneyfelt argues that the trial court's decision to amend

the indictment as to MYB to strike out the phrase "over the

underwear" violated his rights to due process and fundamental

fairness under the Sixth and Fourteenth Amendments.2

The warden has a strong argument that I should review the

New Hampshire Supreme Court's denial of Shaneyfelt's claim under

AEDPA's deferential standard of review because the state law

standard that the New Hampshire Supreme Court used in disposing

of Shaneyfelt's claim is at least as protective of Shaneyfelt's

rights as the likely federal standard. Compare State v. French.

( 2001) and United States v. Fornia-Castillo.

(1st Cir. 2005). I need not resolve Shaneyfelt's

2 The government argues that Shaneyfelt's federal claim is procedurally barred because he did not preserve the claim at the trial court level and failed to fully brief it in his direct appeal. Because I deny Shaneyfelt's petition on the merits, I need not address this argument. See

(b)(2).

- 10 - claim on this basis, however, because it cannot survive even

under a de novo standard of review.

The United States Supreme Court has held that an actual or

constructive amendment to a federal indictment that broadens an

element of the charged offense is a per se ground for reversal

under the Fifth Amendment's Grand Jury Clause. Stirone v. United

States,

(1960); see also United States v.

Miller,

(1985) (an amendment that merely

narrows the grounds on which the case will be tried is not

improper). The First Circuit has further explained that even if

the indictment is not impermissibly amended in that way, the

Grand Jury Clause entitles a defendant to relief if a variance

between the indictment returned by the grand jury and the

evidence produced at trial has caused unfair prejudice to the

defendant. United States v. Fornia-Castillo.

(1st C i r . 2005) .

The United States Supreme Court has not yet determined

whether the exacting standards for improper amendments and

variances that apply to federal indictments under the Fifth

Amendment's Grand Jury Clause should also apply to amendments to

state indictments that are challenged under the Sixth and

- 11 - Fourteenth Amendments. Haines v. Rislev,

(1st

Cir. 2005) (citing Apprendi v. New Jersey.

(2000)), cert, denied.

(2005). Faced with this gap

in the law, at least two courts have applied the Stirone

analytical framework to state prosecutions under a Sixth

Amendment fair notice theory. See Hunter v. New Mexico.

(10th Cir. 1990) (per curiam); Gray v. Raines.

(9th Cir. 1981). Other courts limit the Sixth Amendment

issue by asking only whether the defendant was given notice and

an opportunity to respond to the charges -- an easier standard

for the government to meet. See, e.g.. Wilson v. Lindler,

(4th Cir. 1993) (Widener, J., dissenting),

adopted on reh'q by

, 175 (4th Cir. 1993) (en banc)

(refusing to conduct a Stirone analysis, and instead defining the

Sixth Amendment standard as being whether the defendant was given

notice and an opportunity to respond). The First Circuit has not

yet decided which standard to adopt. Haines.

(describing the circuit split but not taking a position). In

analyzing Shaneyfelt's claim, I assume without deciding that he

is entitled to the more protective Stirone standard.

- 12 - Reviewing Shaneyfelt's claim de novo, I agree with the New

Hampshire Supreme Court that the amendment at issue was not per

se improper because it did not alter an element of the crime with

which Shaneyfelt had been charged. The indictment (both

originally and as amended) charged Shaneyfelt under

-A:3 III, which makes it a crime when a person

"[ejngages in sexual contact with a person other than his legal

spouse who is under 13 years of age." The term 'sexual conduct'

is defined as "the intentional touching whether directly, through

clothing, or otherwise, of the victim's or actor's sexual or

intimate parts, including breasts and buttocks" if the conduct

"can be reasonably construed as being for the purpose of sexual

arousal or gratification."

-A:2 IV;

see also State v. Dixon.

(1999) (discussing

breadth of term "touch" in the statute as a whole and drawing no

distinction between touching underneath clothing and touching

through clothing). Under the terms of the statute, then, when

Shaneyfelt touched M Y B 's vaginal area for the purpose of sexual

arousal, his touch qualified as "sexual contact" regardless of

whether he touched MYB over or under her underwear. Thus, the

court did not expand an element of the offense by striking the

- 13 - phrase "over the underwear" from the indictment.

Shaneyfelt has also failed to present a persuasive argument

that he was unfairly prejudiced by the amendment. As the New

Hampshire Supreme Court noted, Shaneyfelt did not request a

continuance. Nor does it appear from the record that the

amendment interfered with defense counsel's ability to cross-

examine MYB or otherwise mount a defense. Accordingly,

Shaneyfelt was not unfairly prejudiced by the amendment.

B. Ineffective Assistance

Shaneyfelt argues that his trial counsel provided

constitutionally ineffective assistance by: (1) failing to object

when the prosecutor made an improper "golden rule" argument

during his closing argument; (2) failing to object when the

prosecutor improperly expressed his personal belief in

Shaneyfelt's guilt during his closing argument; and (3) failing

to sufficiently involve Shaneyfelt in the jury selection process.

An ineffective assistance of counsel claim requires both

deficient performance and prejudice. Sleeper v. Spencer. __ F.3d

,

(1st Cir. Dec. 5, 2007) (citing

Strickland v. Washington.

(1984)).

- 14 - To establish that counsel's performance was deficient, a

defendant must show that counsel's performance fell below an

objective standard of reasonableness under the circumstances.

Sleeper,

. This review is highly

deferential, making every effort to "eliminate the distorting

effects of hindsight." I d . (quoting Strickland.

). Counsel has "wide latitude in deciding how best to

represent a client," Yarborough v. Gentry.

(2003), and benefits from a strong presumption that he or she

rendered adequate assistance and exercised reasonable

professional judgment in making all significant decisions.

Strickland.

.

To establish prejudice, the defendant must show that, but

for counsel's unprofessional error, there is a reasonable

probability that the result of the proceeding would have been

different. Sleeper.

. A reasonable

probability is a probability sufficient to undermine confidence

in the outcome. I d . (citing Strickland.

).

If counsel's actions did not prejudice the defendant, the

court may dispose of the ineffective assistance claim with a

prejudice analysis alone. Strickland.

("If it is

- 15 - easier to dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice, which we expect will often be so,

that course should be followed"). Where appropriate, I do so

he r e .

1. Golden Rule Argument

Shaneyfelt argues that the prosecutor made an improper

"golden rule" argument during his closing, and that Shaneyfelt's

trial counsel provided ineffective assistance when he did not

object to the alleged "golden rule" argument. A "golden rule"

argument is one that improperly asks the jurors to put themselves

in the shoes of one of the parties. See United States v. Abreu,

(1st Cir. 1992); Walton v. City of

Manchester,

(1995). Such an argument is

inappropriate because it "improperly 'encourages the jury to

depart from neutrality and to decide the case on the basis of

personal interest and bias rather than on the evidence.'" United

States v. Moreno.

(1st Cir. 1991) (quoting

Forrestal v. Maqendantz,

(1st Cir. 1988)).

Shaneyfelt alleges that the prosecutor made a golden rule

argument at the beginning of his closing argument, when he

transitioned from talking about his memories of his basketball

- 16 - injury to the memories of the victims. The prosecutor urged the

jurors to "use your common sense and judgment when you're

thinking about that" and to consider "what are the things that

you hold and the memories that you take with you and that you can

recall?" when evaluating whether the gaps in the victims'

memories affected their credibility.

The state court reasonably decided that this was not an

improper golden rule argument because the prosecutor urged the

jurors to use their common sense understanding of how memory

operates in judging the credibility of the victims' testimony,

rather than asking them to depart from neutrality or identify

emotionally with the victims. See United States v. Kirvan.

(1st Cir. 1993) ("[i]n this situation, the

invitation is not an improper appeal to the jury to base its

decision on sympathy for the victim but rather a means of asking

the jury to reconstruct the situation in order to decide whether

a witness' testimony is plausible"); United States v. Abreu.

(1st Cir. 1992) (prosecutor did not invoke the

golden rule argument when he "simply called on the jury to employ

its ■'collective common sense' in evaluating the evidence and to

draw reasonable inferences therefrom"). Because, as the state

- 17 - court reasonably concluded, the prosecutor's argument was not an

improper golden rule argument, an objection by trial counsel

would have been futile. Thus, Shaneyfelt was not prejudiced by

counsel's performance and the state court acted reasonably in

dismissing his ineffective assistance claim.

2. Prosecutor's Personal Belief in Shaneyfelt's Guilt

Shaneyfelt next argues that his counsel was ineffective

because he failed to object to the prosecutor's improper

expression of personal belief in Shaneyfelt's guilt during his

closing.

The allegedly improper expression took place at the end of

the prosecutor's closing argument, when he urged:

I think lastly I'll just end with this statement. [Defense counsel] had indicated that to be scared about convicting an innocent man, and the thing is is [sic] that he's not innocent . . . . Don't have a fear of convicting this guy. He is guilty of child molestation. He molested those girls. He did it, and he's guilty. Return verdicts of guilty on all three counts, ladies and gentlemen, these girls did only what we could expect you to do. He did it.

The meaning of the statement is ambiguous. Although there

is some risk that the jury could interpret it as an expression of

personal belief in Shaneyfelt's guilt, the prosecutor did not

clearly frame it as a statement of belief by prefacing it with a

- 18 - statement such as "I feel," "I think," or "I believe." Based on

this ambiguity, the state court found that the prosecutor's

statement "can be most reasonably interpreted as being what the

evidence showed, at least in the mind of the prosecutor. It is

no different than defense counsel suggested in his closing that

the defendant was innocent and should be acquitted." N.H. Super.

C t . Dec. 14, 2005 Order, at 5. This was not an unreasonable

finding to make. See United States v. Smith.

, 684-

85 (1st Cir. 1993) ("The prejudice from the errant statements in

the prosecutor's closing argument was mitigated somewhat by their

context and ambiguity . . . . Viewed in context, these ambiguous

statements were not so egregious that they seriously affected the

fairness, integrity, or public reputation of judicial

proceedings" (internal quotations omitted)). Moreover, even if

the trial court might have sustained an objection to the

prosecutor's statement, it is not ineffective assistance for

counsel to refrain from raising every technically possible

objection. See Knight v. Spencer.

(1st Cir. 2006)

("[Defense] counsel could not have rendered ineffective

assistance in failing to object to alleged errors of state

evidentiary law that were either non-prejudicial or

- 19 - nonexistent."). Indeed, counsel's decision to refrain from

objecting may well have been a sound strategic decision in the

particular circumstances. When the prosecutor reached this

section of his closing, defense counsel had already interrupted

the prosecutor's closing statement once to object to the

prosecutor's discussion of unindicted allegations of digital

penetration -- which caused a bench conference to take place in

the middle of the prosecutor's closing. Raising another mid­

argument objection, particularly if the objection were overruled,

could well have hurt Shaneyfelt in the eyes of the jury more than

any minimal help it might have provided.3

3. Jury Selection

Shaneyfelt's last argument is that his trial counsel

provided ineffective assistance when he denied Shaneyfelt the

opportunity to participate in jury selection. Shaneyfelt avers

that he disagreed with some of counsel's decisions during voir

3 The state court found that the statement was an isolated remark in the context of the closing as a whole, and any possible prejudicial effect was mitigated by the court's multiple admonitions to the jury that the statements made by lawyers in their openings and closings are not evidence. N.H. Super. C t . Dec. 14, 2005 Order, at 5. This was not an unreasonable determination of the facts, and supports the notion that the prosecutor's statement caused no real prejudice to Shaneyfelt.

- 20 - dire, but counsel told him to "be quiet" after Shaneyfelt

repeatedly insisted that counsel challenge a particular juror.

Shaneyfelt has not made any specific allegations suggesting that

any of the jurors should have been dismissed for cause. Instead,

he apparently rests his ineffective assistance claim on the idea

that counsel should have followed Shaneyfelt's suggestions

regarding how to exercise his peremptory challenges.

The state court held, " [w]ithout any specific information to

suggest that this particular juror was somehow biased against the

defendant, the Court cannot conclude that defense counsel's

handling of the matter was prejudicial to the defendant." N.H.

Super. C t . Dec. 14, 2005 Order, at 5. This was a reasonable

application of the law, particularly since the record remains

just as undeveloped now as it was before the state court.

Although a client's input may be helpful, an attorney's decisions

on how to exercise peremptory challenges are core strategic

decisions, informed by the attorney's expertise and experience,

and such decisions deserve considerable deference. See, e.g..

Gardner v. Ozmint, __ F.3d __,

(4th Cir.

Dec. 19, 2007) (finding that counsel's decision not to

peremptorily challenge a juror who admitted she was not "100

- 21 - percent" open-minded was not ineffective); Cummings v. Sirmons,

(10th Cir. 2007) (finding that counsel's voir

dire was not ineffective where defendant "did not identify what

questions his trial counsel allegedly should have asked of the

potential jurors, nor did he identify which jurors should

allegedly have been stricken from the panel"); Keith v. Mitchell.

(6th Cir. 2006) (finding that counsel's voir

dire was not ineffective because counsel's unusual focus on

jurors' religious beliefs was part of an objectively reasonable

strategy and his failure to probe the jury's willingness to

sentence a capital defendant to something less than death did not

prejudice the defendant), cert, denied. 127 S. C t . 1881 (2007);

Hughes v. United States.

(6th Cir. 2001)

("Counsel is . . . accorded particular deference when conducting

voir dire. An attorney's actions during voir dire are considered

to be matters of trial strategy."); United States v. Ouintero-

Barraza.

(9th Cir. 1995) (deferring to

counsel's strategic decision not to strike a potential juror who

believed that "one is guilty before proven innocent" and stated

that it would be "difficult" for him to be impartial).

- 22 - Shaneyfelt has failed to demonstrate that the state court's

deference to trial counsel's judgment was contrary to or an

unreasonable application of clearly-established federal law.

Moreover, Shaneyfelt has failed to show how counsel's decision

not to follow his advice was prejudicial. See Davis v. Woodford.

(9th Cir. 2004) ('■'Establishing Strickland

prejudice in the context of juror selection requires a showing

that, as a result of trial counsel's failure to exercise

peremptory challenges, the jury panel contained at least one

juror who was biased").

IV. CONCLUSION

For the foregoing reasons, the government's motion for

summary judgment (Doc. No. 16) 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: Harold Shaneyfelt, Jr., pro se Susan P. McGinnis, Esq.

- 23 -