Contino v . HC HOC 09-CV-062-SM 11/30/09 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Rico A . Contino, Petitioner

v. Civil N o . 09-cv-062-SM Opinion N o .

James O’Mara, Superintendent, Hillsborough County House of Corrections, Respondent

O R D E R

Rico Contino petitions for a writ of habeas corpus.

. Both parties have moved for summary judgment.

Petitioner has attached neither an affidavit nor any other

exhibit to his motion, which is supported, if at all, by an

affidavit he filed three days before he filed the motion.

Respondent objects to petitioner’s motion while petitioner has

filed no objection to respondent’s. For the reasons given,

respondent’s summary judgment motion is granted, and petitioner’s

motion i s , necessarily, denied.

Background

On January 9, 2008, Rico Contino, who was represented by

counsel, pled guilty in Nashua District Court to one count each

of criminal threatening, stalking, and simple assault. (Respt.’s

Mot. Summ. J., Ex. A.) On the day he pled, Contino executed a plea agreement that was signed and approved by Judge James

Michalik. (Id., Ex. B.) Contino also executed a form titled

“Acknowledgment and Waiver of Rights” on which: (1) he

acknowledged that he understood the nature of the charges against

him; (2) his attorney certified that he explained the nature of

the charges against him and the elements of the offenses with

which he had been charged; (3) Judge Michalik found that Contino

understood the nature of the charges against him and the elements

of the offenses with which he had been charged; (4) Contino

stated that no force had been used to compel him to enter his

guilty plea; (5) he stated that he had given up his right to a

speedy and public trial of his own free will; and (6) Judge

Michalik found that Contino had entered his plea and waived

various constitutional rights intelligently, knowingly, and

voluntarily. (Resp’t’s Mot. for Recons., Ex. B (document n o . 41-

3).)

On July 2 3 , 2008, Contino filed a motion in the Nashua

District Court seeking to vacate the sentence to which he had

earlier agreed on January 9, and to dismiss the misdemeanor

charges against him.1 In essence, he sought to withdraw his

1 Contino’s interest in avoiding his guilty pleas appears to be explained by the following paragraphs from his motion:

This petitioner was arrested on 7/4/08, charged with stalking to do with the petitioner’s ex-wife

2 pleas on grounds that he was misinformed, misled, and intimidated

by his attorney into pleading guilty to a crime he did not commit

(stalking), 2 and that he was not in his right state of mind at

the plea hearing because he had been denied his psychiatric

medication while incarcerated beforehand. Judge Michalik denied

Contino’s motion in an order dated February 1 0 , 2009, which

referred to the plea agreement and the Acknowledgment and Waiver

of Rights. In his order, Judge Michalik stated that he had

reviewed the record of the plea hearing and then summarized his

Brenda L . Wilson. Again, the petitioner was not stalking! (This) stalking charged was charged to me as a felony! Because of the guilty conviction of the stalking described above.

The petitioner was not aware that (another) stalking charge would be a felony.

(Compl., Attach. at 12.) It is perhaps worth noting that the Acknowledgment and Waiver of Rights form that Contino executed on January 9, 2008, includes the following provision, which is proceeded by a handwritten check mark:

I understand that if I am convicted of stalking under RSA 633:3-a and have one or more prior stalking convictions in this state or another state when the second or subsequent offense occurs within 7 years following the date of the first or prior offense, I shall be guilty of a class B felony.

(Resp’t’s Mot. for Recons., Ex. B , at 2.) 2 Regarding his attorney’s performance, Contino wrote: “This Petitioner strongly feels that he was, by his lawyer misled, intimidated, and misinformed about what constitutes the above charges; and pleaded guilty.” (Compl., Attach. at 11.)

3 colloquy with Contino. Based upon his review and summary, the

judge ruled:

In view of the record and the thoroughness of the actual agreement attached to the acknowledegment the Court finds that the Defendant knowingly, intelligently and voluntarily entered his pleas on January 9, 2008. Boykin v . Alabama,

(1969); State v . Arsenault, 153 NH 413 (2006). His Motion to Vacate is DENIED.

(Resp’t’s Mot. Summ. J., Ex. E , at 3.) Contino has provided no

evidence that he ever appealed the Nashua District Court’s order

of February 1 0 .

Between the time he moved to vacate his sentence and the

time his motion was ruled o n , Contino filed several other

pleadings seeking essentially the same relief. The first of

those pleadings was a petition for a writ of habeas corpus, filed

in the Superior Court, dated August 2 7 , 2008. That court’s

September 4 order on Contino’s petition stated, in its entirety:

“The request for a writ of Habeas Corpus is DENIED. The

defendant must seek a withdrawal of his plea in the District

Court.” (Resp’t’s Mot. for Recons., Ex. A.) Subsequently,

Contino filed: (1) a petition for a writ of habeas corpus, in the

New Hampshire Supreme Court, dated September 11; 3 (2) a motion to

3 In an order dated October 9, 2008, the Supreme Court construed that filing as both an appeal of the Superior Court’s September 4 order and a petition for a writ of habeas corpus.

4 withdraw his plea, in the Nashua District Court, dated September

22; 4 and (3) a Notice of Discretionary Appeal, in the New

Hampshire Supreme Court, dated December 8 .

In his December 8 Notice of Appeal, Contino indicated that

he was appealing the Superior Court’s September 4 denial of his

habeas petition. In that order, the court did not reach the

merits of his petition but, rather, directed him to move the

Nashua District Court to allow him to withdraw his plea.

Notwithstanding the limited character of the order from which he

was appealing, Contino gave the following brief description of

the nature of his case: “my guilty plea was involuntary.”

(Compl., Attach. at 192.) He then elaborated:

I did not understand what I was pleading t o ; I was deceived by my attorney; I was very sick with mental illness; I did not know of a possible future charge enhancement; I am innocent of two of the three charges I pled to – the first charge of simple assault – I did not assault anyone. I grabbed my live-in girlfriend’s wrist to retrieve monies she owed me but would not pay; I was manipulated into (taken advantage of) pleading guilty out of retaliation for filing

(Compl., Attach. at 139.) It then dismissed the habeas petition and directed petitioner to refile his appeal of the September 4 order in proper form. (Id. at 139-40.) 4 The disposition of that motion is not clear from the record.

5 complaints against certain Nashua police officers.

I feel that these issues above deserve attention from this court. Because I was all alone, defenseless, and something like this should never happen. Especially considering the pettiness of what I actually did and did not d o . And the reasons why I had to go through it all. Judge did not inquire into above.

(Compl., Attach. at 193.) By order dated January 8 , 2009, the

New Hampshire Supreme Court declined to hear Contino’s appeal.

Because the Superior Court order from which Contino appealed did

nothing more than direct him to seek relief in the Nashua

District Court, the additional issues he identified in his Notice

of Appeal were not fairly presented to the Supreme Court, it

being axiomatic that an appeal is necessarily limited to the

issues decided by the decision appealed from.

Contino filed his habeas petition in this court on February

2 5 , 2009. As construed by the magistrate judge, his petition

consists of the following claims:

1. Contino’s convictions for criminal threatening, stalking, simple assault, and two counts of operating a motor vehicle with an expired registration, entered in the [Nashua District Court] upon his January 9, 2008 guilty plea, and the sentences imposed thereon, violate his Fifth, Sixth, and Fourteenth Amendment rights, and should be vacated because:

A. Contino was not advised what the state was required to prove to obtain a stalking conviction at trial, and, had Contino known,

6 he would not have entered a guilty plea to that charge;

B. Contino’s attorney forced him to plead guilty to charges on which he wanted to go to trial;

C. The [Nashua District Court] Judge who accepted Contino’s guilty plea was aware, at the time of Contino’s plea, that Contino wanted a trial on these matters;

D. Due to his mental condition and lack of necessary mental health medications, Contino was “not right in the head” and “very delusional” at the time his guilty plea was entered, rendering him incompetent to knowingly, intelligently, and voluntarily enter the plea, which was known to his attorney and to the judge who accepted his plea;

2. Contino received ineffective assistance of counsel in the [Nashua District Court], resulting in his guilty plea to offenses he did not commit in violation of his Sixth and Fourteenth Amendment rights.

(Report & Recommendation (document n o . 1 2 ) , at 7-7.)

Discussion

Respondent argues that Claim One was procedurally defaulted,

that Claim Two has not been exhausted, and, in the alternative,

that both claims lack merit. Because both Claims One and Two

have been procedurally defaulted by virtue of Contino’s failure

7 to appeal the Nashua District Court’s February 10 order,

respondent is entitled to summary judgment.5

Federal habeas corpus relief may not be granted unless a

petitioner’s state-law remedies have been exhausted, or deemed

exhausted, in one of the three ways specified in

(b). 6

Because there is no indication in the record that Contino

ever appealed the District Court’s February 10 order denying his

motion to vacate his sentence, he appears not to have “exhausted

the remedies available in the courts of the State.” 28 U . S . C . §

2254(b)(1)(A). But, because an appeal of that order would now be

time barred, see N . H . S U P . C T . R . 7(1)(B) (providing that a

discretionary “appeal shall be filed by the moving party within

5 While respondent contends, in the context of his exhaustion argument, that Contino did not raise ineffective assistance of counsel in his Nashua District Court motion to vacate his sentence, he did, in fact, rely on that theory. (See Compl., Attach. at 11.) 6 Section 2254(b)(2) provides that “[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” But, in this case, such a disposition is not possible due to significant evidentiary gaps. Regarding Claim One, the record still lacks the transcript of the January 9, 2008, sentencing hearing. Regarding Claim Two, judgment on the merits for respondent would seem to require, at the very least, an affidavit from Contino’s attorney.

8 30 days from the date on the clerk’s written notice of the

decision on the merits”), Contino’s claim has been procedurally

defaulted. See Pike v . Guarino,

1 , 73 (1st Cir. 2007)

(“a claim is procedurally defaulted if it was not presented to

the state courts and it is clear that those courts would have

held the claim procedurally barred”). As has been explained in

somewhat greater detail:

When a claim is not exhausted because it was not fairly presented to the state courts, but state procedural rules bar further state relief, the exhaustion requirement is satisfied because “there is an absence of available State corrective process.”

(b)(1)(B)(i); Lines v . Larkins,

(3d Cir. 2000). However, “[w]hen a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court.” Ylst v . Nunnemaker,

9 7 , 801 (1991); see also Coleman v . Thompson,

2 2 , 750 (1991). Thus, where a state court remedy is no longer available because the statutory period for seeking relief has passed, the failure to timely file a claim in state court results in procedural default of the claim. O’Sullivan v . Boerckel,

3 8 , 848 (1999).

Rivera v . Goode,

8 2 , 591-92 (E.D. P a . 2008)

(parallel citations omitted).

The situation described in Rivera precisely matches the

circumstances of this case. Contino appears not to have appealed

the denial of his motion to vacate his sentence, and the time for

filing such an appeal has passed. Thus, both claims Contino

9 raises in his petition have been procedurally defaulted. “The

doctrine of independent and adequate state grounds ‘applies to

bar federal habeas when a state court [would] decline[ ] to

address a prisoner’s federal claims because the prisoner has

failed to meet a state procedural bar.’ ” Yeboah-Sefah v. Ficco,

, 56 (1st Cir. 2008) (quoting Coleman, 501 U.S. at

730-31). Accordingly, respondent is entitled to summary

judgment.

Conclusion

For the reasons given, petitioner’s motion for summary

judgment (document no. 17) is denied, and respondent’s motion for

summary judgment (document no. 39) is granted. Respondent’s

motion for reconsideration (document no. 41) is moot. The clerk

of the court shall enter judgment in accordance with this order

and close the case.

SO ORDERED.

Steven J. McAuliffe /Chief Judge

November 30, 2009

cc: Rico A. Contino, pro se Elizabeth L. Hurley, Esq.

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