Case l:06-cv-00353-SM Document 47 Filed 06/24/09 Page 1 of 9

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Randv S. Campnev, Sr., Petitioner

v. Civil No. 06-CV-353-SM Opinion No.

Superintendent, Bare Hill Correctional Facility, Respondent

O R D E R

As a result of a previous order (document no. 34), Randy

Campney's petition for a writ of habeas corpus rests upon two

asserted grounds for relief. Before the court is respondent's

motion for summary judgment, to which petitioner has not

objected. For the reasons given, respondent's motion for summary

judgment is granted.

The Legal Standard

Federal habeas corpus relief may be granted "only on the

ground that [a petitioner] is in custody in violation of the

Constitution or laws or treaties of the United States."

(a). Passage of the Anti-Terrorism and Effective

Death Penalty Act of 1996 ("AEDPA"),

(d), has

significantly limited the power of the federal courts to grant

habeas corpus relief to state prisoners. Case l:06-cv-00353-SM Document 47 Filed 06/24/09 Page 2 of 9

When a petitioner's claim "was adjudicated on the merits in

State court proceedings," i d ., a federal court may disturb a

state conviction only when: (1) the state court 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); or (2) 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).

"AEDPA's strict standard of review only applies to a claim

that was adjudicated on the merits in state court proceedings."

Norton v. Spencer.

(1st Cir. 2003) (quoting Fortini

v. Murphy.

(1st Cir. 2001); citing Ellsworth v.

Warden.

(1st Cir. 2003)). "When the state court

has never addressed the particular federal claim at issue,

federal review is de novo." Dugas v. Coplan.

(1st

Cir. 2007) (citing Pike v. Guarino.

(1st Cir.

2007)). "As [the court of appeals for this circuit has] noted, a

federal court 'can hardly defer to the state court on an issue

that the state court did not address.'" Dugas.

(quoting Fortini.

). Here, both claims are subject

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to de novo review, as they were rejected by the state courts

without discussion.

Discussion

Petitioner's two remaining grounds for relief have been

construed by the magistrate judge to be as follows: (1) a claimed

violation of the Interstate Agreement on Detainers ("IAD"),

occurring when the trial court failed to appoint defense counsel

in accordance with the IAD, and that delay prevented proper

discovery and defense (original Ground 3(e)); and (2) a claimed

denial of effective assistance of appellate counsel (original

Ground 6).

Petitioner contends that the trial court failed to appoint

defense counsel in accordance with the IAD. But, he does not

identify any IAD provision that pertains to the appointment of

counsel, and the court has been unable to find such a provision.

Because nothing the trial court could have done regarding the

appointment of counsel could have violated the IAD, petitioner's

lAD-based ground for relief does not state a habeas claim.

Accordingly, respondent is entitled to judgment as a matter of

law on that claim.

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Petitioner's remaining ground for relief is his claim that

he was "denied effective assistance of appellate counsel because

of incomplete records and the inability of the [petitioner] to

communicate in a meaningful way with his appellate counsel due to

his out-of-state incarceration" and because "Appellate Counsel

failed to raise several issues even though trial counsel placed

them upon the Notice of Appeal." (Pet. (document no. 1), at 16.)

As noted, petitioner has filed no objection to respondent's

motion for summary judgment, which leaves the petition itself as

the only exposition of his claims. The petition does not

identify: (1) the records that were allegedly incomplete, the

effect that incomplete records had on his appeal, or his

counsel's role in obtaining (or not obtaining) the records in

question; (2) the scope or extent of the claimed inability to

communicate, the effect that lack of communication had on his

appeal, or anything his counsel failed to do in order to maintain

adequate communication; or (3) the specific issues his appellate

counsel failed to raise, or the effect of his counsel's decision

to drop some of the issues raised in the notice of appeal.

"A criminal defendant claiming a Sixth Amendment ineffective

assistance of counsel violation must establish that (1)

'counsel's representation fell below an objective standard of

reasonableness,' and (2) 'a reasonable probability that, but for

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counsel's unprofessional errors, the result of the proceeding

would have been different.'" Knight v. Spencer.

(1st Cir. 2006) (quoting Smiley v. Maloney.

(1st

Cir. 2005); citing Strickland v. Washington.

(1984)). With regard to the first prong of the test:

This is a highly deferential review, making every effort to "eliminate the distorting effects of hindsight." [Strickland. 466 U.S.] at 689. As the Supreme Court emphasized in Yarborough v. Gentry, the "Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight."

(2003). When examining counsel's conduct, the court considers the facts of the particular case from counsel's perspective at the time. Strickland.

. Counsel has "wide latitude in deciding how best to represent a client," Gentry.

, and benefits from a strong presumption that he or she rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions. Strickland.

9 0.

Sleeper v. Spencer.

(1st Cir. 2007) (parallel

citations omitted). With regard to the second prong, "[a]

reasonable probability is a probability sufficient to undermine

confidence in the outcome." I d . at 39 (citation omitted).

Moreover, while petitioner must prove both deficient performance

and prejudice to prevail. I d . at 38, "a reviewing court need not

address both requirements if the evidence as to either is

lacking. As the Supreme Court has recognized, '[ijf it is easier

to dispose of an ineffectiveness claim on the ground of lack of

sufficient prejudice, which we expect will often be so, that

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course should be followed.'’" I d . at 39 (quoting Strickland.

) .

Of the three factual bases for petitioner's ineffective

assistance claim, the first two are plainly deficient.

Petitioner says he received ineffective assistance because of

"incomplete records." Not only does the petition fail to

identify the records that were incomplete, it fails to identify

any specific action or inaction on the part of petitioner's

appellate counsel that resulted in or from the incomplete records

of which he complains. Without any allegation concerning what

his appellate counsel did or did not do regarding "records,"

petitioner has alleged no facts which, if proven, would establish

that his "counsel's representation fell below an objective

standard of reasonableness," or that there is "a reasonable

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

result of the proceeding would have been different." Knight. 447

F .3d at 15.

Such is also the case regarding petitioner's claim that he

received ineffective assistance because of his inability to

communicate effectively with his appellate counsel. Difficulty

in communication due to petitioner's out-of-state incarceration

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does not, standing alone, rise to the level of ineffective

representation.

Petitioner's final contention is that his appellate counsel

was ineffective because he failed to brief several issues that

were listed in his notice of appeal. "[T]he proper standard for

evaluating [a] claim that appellate counsel was ineffective in

neglecting to file a merits brief is that enunciated in

Strickland." Smith v. Robbins.

(2000) (citing

Smith v. Murray.

(1986)). With regard to

the first prong of the Strickland test, "the process of winnowing

out weaker claims on appeal and focusing on those more likely to

prevail, far from being evidence of incompetence, is the hallmark

of effective appellate advocacy." Burger v. Kemp.

(1987) (quoting Smith v. Murray.

) (internal

quotation marks omitted).

Petitioner's notice of appeal to the New Hampshire Supreme

Court listed eleven issues. His brief addressed two (or perhaps

three) of the eleven. Of the issues that were noticed but not

briefed, petitioner does not identify any issue or issues that

were not briefed but should have been. That is, petitioner's

claim is not that his appellate counsel failed to brief any

particular issue or issues that, if presented to the state

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Supreme Court, would have likely resulted in material relief.

Rather, he appears to claim that his counsel's failure to brief

all the issues raised in his notice of appeal resulted in an

unfavorable appellate decision, one that would have gone the

other way if his counsel had not chosen to drop some of the

issues raised in the notice of appeal. That argument is

untenable, given the strong presumption of adequate assistance

and reasonable professional judgment, see Strickland.

, and the teaching of Burger that the winnowing of claims on

appeal is "the hallmark of effective appellate advocacy,"

. In short, petitioner's appellate counsel's decision

to pursue only some of the issues listed in the notice of appeal

did not, standing alone, fall "below an objective standard of

reasonableness." Knight.

. Accordingly,

respondent is entitled to judgment as a matter of law on

petitioner's ineffective assistance claim.

Conclusion

For the reasons given, respondent's motion for summary

judgment (document no. 45) is granted. The clerk of the court

shall enter judgment in accordance with this order and close the

case.

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SO ORDERED

'm. McAuliffe "Chief Judge

June 24, 2009

cc: Randy S. Campney, Sr., pro se Elizabeth C. Woodcock, Esq. Stephen D. Fuller, Esq. John C. Vinson, Esq.

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