Hooper v. Warden, NNHCF 08-CV-426-JD 07/21/10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Oliver Hooper

v. Civil No. 08-cv-426-JD Opinion No.

Warden, Northern New Hampshire Correctional Facility

O R D E R

After the court granted summary judgment in favor of the

Warden on Oliver Hooper's petition for relief under

, Hooper filed a motion for reconsideration. Hooper argues

that the court misunderstood his Confrontation Clause claim. The

Warden did not file a response.

Background

Hooper sought habeas corpus relief pursuant to § 2254 from

his state convictions and sentences for aggravated felonious

sexual assault, simple assault, criminal threatening, sexual

assault, and kidnaping. The court granted summary judgment in

the Warden's favor on Hooper's claims that the state court's

evidentiary rulings violated his rights under the Fifth

Amendment, the New Hampshire Constitution, and state law; that he

was not afforded the presumption of innocence; and that he was not tried under the proper standard of proof. The court denied

summary judgment on Hooper's Confrontation Clause claim because

the Warden failed to provide the applicable federal standard for

Confrontation Clause issues, failed to make a persuasive argument

that Hooper's federal claim did not entitle him to relief, and

failed to develop the theory that any error in limiting cross-

examination would be harmless.

The Warden then moved for summary judgment on the

Confrontation Clause claim. Hooper contended that the defense in

his criminal trial was restricted in cross-examining the state's

expert witness, Jennifer Pierce-Weeks, in violation of the

Confrontation Clause. Specifically, the defense sought to

challenge Pierce-Weeks's opinions about why Hooper's DNA was not

found in the rape kit testing by asking her about other semen

found in the testing, which the trial court did not allow. This

court granted summary judgment in the Warden's favor, concluding

that Pierce-Weeks's challenged opinions held little weight in the

context of her entire testimony and the evidence as a whole,

which established that the reason Hooper's DNA was not found was

because he had not ejaculated. Therefore, the probative value of

the excluded evidence was not significant and was outweighed by

the state's interest in protecting Hooper's victim from

disclosure of her prior sexual activity.

2 Standard of Review

Federal Rules of Civil Procedure 59(e) and 60(b) govern

motions for reconsideration. " [M]otions for reconsideration are

appropriate only in a limited number of circumstances: if the

moving party presents newly discovered evidence, if there has

been an intervening change in the law, or if the movant can

demonstrate that the original decision was based on a manifest

error of law or was clearly unjust." United States v. All e n ,

(1st Cir. 2009). In addition, reconsideration may be

appropriate "if the court has patently misunderstood a party or

has made an error not of reasoning but apprehension." Ruiz

Rivera v. Pfizer Pharms., LLC,

(1st Cir. 2008)

(internal quotation marks omitted).

Discussion

Hooper contends, in support of his motion for

reconsideration, that the court erred in construing his

Confrontation Clause claim. Hooper argues that his Confrontation

Clause claim asserted that his right was violated when the trial

court denied cross-examination on Pierce-Weeks's rape kit

testimony to show that the testimony was misleading. He contends

that the court mistakenly addressed a different claim that

Hooper's Confrontation Clause rights were violated because the

3 defense was not permitted to cross-examine Pierce-Weeks about the

victim's prior sexual activity.

In the context of this case. Hooper's argument posits a

distinction without a difference. As stated in the court's prior

orders. Hooper sought to cross-examine Pierce-Weeks about other

semen found in the rape kit testing to challenge her opinions

that the passage of time and showering explained why Hooper's DNA

was not found in the testing. Because other semen was found in

testing, its presence shows that neither the passage of time nor

showering would explain the absence of Hooper's semen. The

presence of other semen in the testing, however, necessarily

shows that the victim engaged in sexual activity with someone

else. Therefore, the subject matter of the proposed cross-

examination, semen from the victim's prior sexual activity,

implicated the state's legitimate interest in protecting her from

disclosing her prior activity.

The court correctly understood Hooper's claim and concluded

that no violation of the Confrontation Clause occurred during his

state court trial. Therefore, Hooper has not shown grounds for

reconsideration.

4 Conclusion

For the foregoing reasons, the petitioner's motion for

reconsideration (document no. 45) is denied.

Because the petitioner sought reconsideration of the summary

judgment order, the deadline for filing a motion for a

certificate of appealability has passed. The petitioner may move

for a certificate of appealability under

(c),

with a supporting memorandum, on or before August 3, 2010. The

Warden shall file a response within ten days after the date the

motion is filed. See Rule 11, Rules Governing § 2254 Cases.

SO ORDERED

Jos’eph A. DiClerico, Jr. vjJoseph United States District Judge

July 21, 2010

cc: Oliver Hooper #78519, pro se Elizabeth C. Woodcock, Esquire

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