Abram v Warden, NH State Prison CV-07-272-JL 5/20/09 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Scott Abram

v. N o . 07-cv-272-JL Opinio n N o .

Warden, New Hampshire State Prison

O R D E R

Petitioner, Scott Abram, seeks relief pursuant to

from his state court conviction, contending that his Sixth

Amendment confrontation rights were violated by limits placed on

cross-examination during his criminal trial. This court has

jurisdiction under

(federal question) and the

Anti-Terrorism and Effective Death Penalty Act of 1996,

§ 2254(a). Both Abram and the Warden of the New Hampshire State

Prison move for summary judgment.1 For the reasons stated below, the Warden’s motion for summary judgment is granted, and Abram’s

is denied.

I. APPLICABLE LEGAL STANDARD

In the context of a habeas corpus proceeding, summary

judgment is appropriate when the nonmoving party does not show a

genuine issue of material fact that would require an evidentiary

1 Abram filed an objection to the Warden’s motion. The Warden did not respond to Abram’s motion. hearing. See Dugas v . Coplan,

, 8-9 (1st Cir. 2007);

Bader v . Warden,

(1st Cir. 2007). Both parties

in this case move for summary judgment on undisputed facts, and

neither contends that further evidentiary development is

necessary to resolve the petition. Therefore, the case is

submitted on the papers. See, e.g., Garcia-Ayala v . Lederle

Parenterals, Inc.,

3 8 , 643-44 (1st Cir. 2000). When, as here, the state court adjudicated the petitioner’s

claim on the merits, collateral review of the state court

decision is deferential. Rompilla v . Beard,

7 4 , 404

(2005). Pertinent to this case, “a federal court may not grant a

state prisoner’s habeas application unless the relevant state-

court decision ‘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.’” Knowles v . Mirzayance,

129 S . C t . 1411, 1418 (2009) (quoting § 2254(d)(1)). The Supreme

Court, however, need not have issued a decision directly on point to provide Supreme Court precedent, and courts are not precluded

from considering decisions of lower federal courts to determine

whether a state court decision is contrary to or an unreasonable

application of federal law. Evans v . Thompson,

, 10

(1st Cir. 2008).

2 II. BACKGROUND2

In 1997, Abram married Evelyn Towne, who had three children:

a daughter, A.A., and two sons, C.A. and K.A. Abram and Towne

then had two children together, M.T. and J.T.3 The family moved

to Concord, New Hampshire, in 2000 when A.A. was eleven and C.A.

was nine. On November 4 , 2002, A.A. and C.A. told their mother

that Abram had been sexually abusing them for a long time. The

children reported that Abram sexually assaulted them and forced

A.A. and C.A. to engage in sexual conduct together. They also

accused him of abusing their brothers, K.A. and M.T. The

assaults and abuse are described in more detail in Abram, 153 N.H. at 621. 4

2 The background facts are taken from the decision in State v . Abram,

(2006). 3 Although the family is identified this way by the New Hampshire Supreme Court, the oldest child, A.A., described her family differently in her police interviews. There, A.A. stated that her biological father was Clifton Abram, that she, C.A., and K.A. were his children. She explained that her step-father was Scott Towne, her mother was Evelyn Towne, and that M.T. and J.T. were their children. Because the defendant is Scott Abram, not Scott Towne as A.A. describes him, this court will use the names provided by the New Hampshire Supreme Court. 4 In 1999, A.A. and C.A. reported that Abram was sexually abusing them, and A.A. said that Abram was also abusing their younger brothers, K.A. and M.T. After C.A. recanted his accusations, however, A.A. also recanted her reports. Those accusations are not at issue in this case.

3 Based on A.A.’s and C.A.’s reports, Abram was arrested and

indicted on charges of aggravated felonious sexual assault and

related offenses, stemming from the abuse of A.A. and C.A.

between November of 2000 and November of 2002. Before trial, the

court denied Abram’s motion to sever the charges involving A.A.

from those involving C.A. and from the charges that he forced

A.A. and C.A. to engage in sexual activity together. The court

also granted the State’s motion to preclude evidence of A.A.’s

and C.A.’s accusations that Abram had assaulted K.A. and M.T.

The jury convicted Abram of twenty-one counts of aggravated

felonious sexual assault, four counts of endangering the welfare

of a child, and one count of indecent exposure and lewdness. On

June 2 5 , 2004, Abram was sentenced to a total of fifty to one

hundred years in prison. Abram appealed, arguing that the

charges against him were improperly joined in one trial and that

the trial court violated his rights under the New Hampshire

Constitution and the Sixth Amendment of the United States

Constitution by prohibiting cross-examination of A.A. and C.A. about their accusations that Abram abused K.A. and M.T. The New

Hampshire Supreme Court reversed Abram’s convictions on nine of

the offenses due to improper joinder and otherwise affirmed his

4 conviction.5 Abram then filed a petition for a writ of habeas

corpus in this court.

III. ANALYSIS

In support of his petition for a writ of habeas corpus,

Abram asserts that the New Hampshire Supreme Court’s decision

affirming his convictions on all but nine of the charged offenses

was an unreasonable application of clearly established federal

law. Specifically, Abram contends that the trial court’s

decision to preclude cross-examination of A.A. and C.A. about

their accusations that Abram also sexually abused K.A. and M.T.

violated his Sixth Amendment right to confront the witnesses

against him. The Warden accepts that the right to confront

witnesses through cross-examination is clearly established

federal law, as determined by the Supreme Court, but argues that

Abram’s reliance on White v . Coplan,

(1st Cir. 2005),

is misplaced and that the New Hampshire Supreme Court reasonably

applied Supreme Court precedent.

5 On remand, after Abram’s first appeal, the trial court reinstated its original sentence, despite the reversal on appeal of Abram’s convictions on nine offenses. Abram appealed his sentence, contending that it was vindictive, and the New Hampshire Supreme Court agreed, vacating the sentence and remanding the case for resentencing. State v . Abram,

(2008). Abram was resentenced to thirty to sixty years.

5 A. Clearly established federal law

“The Confrontation Clause of the Sixth Amendment guarantees

the right of an accused in a criminal prosecution ‘to be

confronted with the witnesses against him.’” Delaware v . Van

Arsdall,

(1986). Essential to that right is

the ability to cross-examination adverse witnesses.

.

The right is not unbounded, however, and reasonable limits may be imposed on cross-examination “based on concerns about, among

other things, harassment, prejudice, confusion of the issues, the

witness’ safety, or interrogation that is repetitive or only

marginally relevant.”

Abram relies on the holding in White v . Coplan,

8 ,

27 (1st Cir. 2005), to support his contention that the New

Hampshire Supreme Court’s decision, affirming the trial court’s

decision to preclude cross-examination of A.A. and C.A. about

their accusations pertaining to abuse of K.A. and M.T., violated

the Sixth Amendment. The Warden argues that § 2254(d)(1) is limited to consideration of Supreme Court cases, precluding

reliance on White. Therefore, the Warden contends, White is

inapplicable here.

As is noted above, although § 2254(d)(1) refers to federal

law as determined by the Supreme Court, that reference does not

limit reviewing courts to Supreme Court cases. The decisions of

the courts of appeals “inform the analysis of Supreme Court

6 holdings to determine whether a legal principle ha[s] been

clearly established by the Supreme Court.” Hereford v . Warren,

(6th Cir. 2008). Those decisions may state the

clearly established federal law or show how a general standard

articulated by the Supreme Court applies in particular factual

circumstances. Evans,

0 . Therefore, White v .

Coplan is an appropriate source for determining clearly

established federal law under § 2254(d)(1).

B. Facts

Abram, who is represented by counsel, brought his petition

for habeas relief under § 2254(d)(1). He asserts that no factual

issues exist in this case, and he does not challenge the factual

basis of the state court’s decision as a ground for habeas

relief.6 C.f. § 2254(d)(2) (providing habeas relief when the

adjudication of a claim in state court “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”).

He states that his petition raises only a legal issue as to

whether the New Hampshire Supreme Court’s decision is contrary to

or and unreasonable application of Sixth Amendment jurisprudence

as interpreted by White.

6 Abram asked to supplement the record with transcripts of interviews of A.A. and C.A., which was granted, but did not request a hearing.

7 Nevertheless, Abram argues that A.A.’s and C.A.’s

accusations that Abram sexually abused K.A. and M.T. were false,

and cites the record in an attempt to support his argument. The

New Hampshire Supreme Court, however, concluded that Abram had

not shown that A.A.’s and C.A.’s accusations were false. Abram,

. Because Abram failed to show the unusual

circumstances required under White, the court held that the

demonstrably false standard applied.

Abram did not raise a claim under § 2254(d)(2) as a ground

for habeas review. Even if that ground had been raised, however,

Abram would face a heavy burden to show that the state court’s

factual determination was unreasonable.7 See Schriro v .

Landrigan,

(2007); Rice v . Collins,

(2006). The materials Abram submitted for habeas

review, to support his theory that A.A. and C.A. falsely accused

him of sexually abusing K.A. and M.T., do not establish that to

be the case. Consonant with the supreme court’s conclusion, the

record is at best unclear and tends to show that A.A. and C.A. were truthful. Therefore, a claim under § 2254(d)(2) would not

have been successful in this case.

7 “In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” § 2254(e)(1).

8 C. Contrary to or an unreasonable application of federal law Abram contends that the decision affirming the trial court’s

ruling, which barred cross-examination of A.A. and C.A. about

their accusations involving sexual abuse of their brothers, was

contrary to or an unreasonable application of federal law

interpreting the Sixth Amendment.8 Specifically, Abram argues

that he should have been allowed to cross-examine A.A. and C.A.

to impeach their credibility, because their accusations were

strikingly similar to their accusations against Abram about their

own sexual abuse and were false. Abram asserts under the Sixth

Amendment’s Confrontation Clause, as interpreted in White, he was

entitled to pursue cross-examination.

In White, the defendant was charged with sexual assault

against two young girls, the daughters of a friend. 399 F.3d at

19. They were the only witnesses who testified that the assaults

occurred. Id. at 20-21. At trial, White sought to cross-examine

each girl about three prior accusations of sexual assault the

girls had made. Id. at 2 1 . In one case, the accused was found

8 In his petition for a writ of habeas corpus, Abram asserted that the state court decision was both “contrary t o , and involved an unreasonable application of” federal law. Pet. at 1 . Specifically, he argued that New Hampshire’s evidentiary rule which requires a showing that prior accusations are clearly and convincingly untrue to allow cross-examination is contrary to the Sixth Amendment. For purposes of summary judgment, Abram argued that “the Court’s decision involved an unreasonable application of clearly established federal law.” Mem. ¶ 1 5 ; see also Mem. ¶ 18.

9 not guilty; in another, no charges were brought, and in the

third, the police never identified the accused individual. Id.

In support of his motion to allow cross-examination, White

argued that the girls’ prior accusations were similar to their

accusations against him and that the evidence related to the

girls’ credibility and their prior sexual knowledge. The court

ruled, based on New Hampshire law, that such prior accusations would have to be “demonstrably false” to be admissible, which was

not the case, disagreed as to the similarity of the accusations,

and expressed concern about unnecessary prejudice and invasion of

privacy for the girls. Id. at 2 2 . On appeal, the New Hampshire

Supreme Court ruled that White had shown a “reasonable

probability” that the girls’ prior accusations were false but had

not shown that the prior accusations were demonstrably false,

which is equated with clear and convincing evidence. Id. The

court affirmed White’s conviction. Id.

White brought a federal habeas corpus action in this court, which was denied, and White appealed. The First Circuit noted

that under Supreme Court precedent, “cross-examination [is] an

essential constitutional right for a fair trial, subject to

‘reasonable limits’ reflecting concerns such as prejudice,

confusion or delay incident to ‘marginally relevant’ evidence.”

Id. at 2 4 . The First Circuit interpreted Supreme Court cases to

require “a balancing of interests depending on the circumstances

10 of the case,” which required consideration of the importance of

the evidence, the extent of the evidentiary ban, and the strength

of the interests weighing against the evidence. Id. Under that

standard, the court ruled that New Hampshire’s evidentiary rule

barring cross-examination absent proof that a prior accusation is

demonstrably false is “generally defensible . . . [but] it may on

particular facts be applied to produce an unconstitutional infringement.” Id.

For purposes of appeal, White narrowed his claim to the

right to cross-examine the witnesses about their prior

accusations. Id. at 2 6 . The court noted the limitation on

White’s claim and explained that offering extrinsic evidence to

show that prior accusations were false “requires more witnesses

and documents, and so greater risks of confusion and delay” and

was not the kind of evidence that has traditionally been

admitted. Id. The court ruled, however, that in extreme cases,

where a victim’s prior accusations are “of a quite similar character to the present one” and the court has ruled that “the

prior accusations (or at least two of them) were false to a

reasonable probability,” the Sixth Amendment requires that the

defendant be permitted cross-examination. Id. at 2 7 .

In Abram’s case, the New Hampshire Supreme Court discussed

the holding in White and applied White to the circumstances of

Abram’s case.

. As to the similarity of the

11 charges against Abram to A.A.’s and C.A.’s accusations about

Abram’s abuse of their brothers, the court concluded that because

the additional accusations were not about abuse to themselves but

instead involved their brothers, those accusations were not as

probative as the prior accusations in White, which involved the

same victims. The court concluded that “admission of evidence

concerning [K.A. and M.T.] would produce significant confusion of

the issues, likely resulting in a ‘trial within a trial,’ and

potentially causing substantial delay.”9

.

More importantly, neither the trial court nor the New

Hampshire Supreme Court found that A.A.’s and C.A.’s accusations

involving Abram’s abuse of K.A. and M.T. were false or false to a

reasonable probability. Abram,

-33; c f . White,

7 . To the contrary, the supreme court reviewed the

evidence Abram offered to show that A.A.’s and C.A.’s accusations

of abuse of their brothers was false and found it wanting.

The supreme court concluded that Abram “has not asserted the

type of ‘extreme’ and ‘unusual’ facts that were present in White . . . [and held] that the application of the ‘demonstrably false’

9 The supreme court focused primarily on appropriate limitations on cross-examination, as opposed to the similarity of accusations (albeit involving different victims) as discussed in White. See 399 F.3d at 2 7 . A.A.’s and C.A.’s accusations that Abram also sexually assaulted their brothers, K.A. and M.T., were very similar to their accusations about their own sexual abuse, and were particularly similar to the accusations about C.A. That question, however, is only half of the White analysis.

12 requirement to the particular facts before [them] did not violate

the defendant’s due process and confrontation rights under the

Federal Constitution.” Id. at 633. The supreme court’s

decision, taken as a whole, was neither contrary to nor an

unreasonable application of federal law under Supreme Court

precedent, as interpreted by White. Therefore, Abram has not

shown that he is entitled to judgment in his favor as a matter of law. The Warden is entitled to summary judgment.

IV. CONCLUSION

For the reasons stated above, based on the undisputed facts

as presented by the parties in their motions for and oppositions

to summary judgment, Abram is not entitled to a writ of habeas

corpus under § 2254(d)(1). Summary judgment is granted in favor

of the Warden.10 Abram’s motion for summary judgment11 is denied.

Abram’s petition for a writ of habeas corpus is denied. The

clerk of court shall enter judgment accordingly and close the

case.

10 Document n o . 2 5 . 11 Document n o . 2 6 .

13 SO ORDERED.

Joseph N. LaPlante United States District Judge Dated: May 2 0 , 2009 cc: Paul J. Garrity, Esq. Ann M . Rice, Esq. Stephen D. Fuller, Esq.

14